Director of Public Transport v XFJ [2010] VSC 319 (29 July 2010)

The Victorian Supreme Court has affirmed the importance of a broad approach to the construction of human rights in the Charter, including appropriate reliance on international human rights law and comparative jurisprudence. 

Facts

This case concerned the accreditation of XFJ to drive a taxi. 

In 1990, XFJ killed his wife and attempted suicide after experiencing profound trauma, but was found not guilty by reason of insanity.  He was detained in custody at the Governor’s pleasure and released into the community in 1998.  For the last 14 years, XFJ has been ‘symptom free’.  He was described as ‘intelligent and insightful’, and no more likely than any other member of the community to re-offend.  He had undertaken charity work with the elderly and people experiencing homelessness, but required flexible paid employment to enable him to care for his 19 month old son with leukaemia.  He sought a taxi licence for this purpose. 

The Director of Public Transport appealed a decision of VCAT to accredit XFJ as a suitable person to drive a taxi.  The Victorian Equal Opportunity and Human Rights Commission intervened in the proceeding to make submissions about the relevance of the Charter.

Decision

Justice Ross dismissed the Director’s appeal and affirmed XFJ’s suitability for accreditation.  The case was not decided on Charter grounds.  Justice Ross did, however, make a number of observations about the Charter in obiter, including that:

• Section 32(1) of the Charter is a statutory directive which requires ‘exploring all possible interpretations of the provisions in question and adopting that interpretation which least infringes Charter rights’ (see also R v Momcilovic [2010] VSCA 50).
• The right to equality and non-discrimination under s 8 of the Charter, ‘like other rights protected by the Charter, should be construed broadly’ (see also DAS v VEOHRC [2009] VSC 381).
• ‘There is considerable support in the international jurisprudence for the adoption of a flexible approach to the question of the appropriate comparator in the context of the equality right’ and a ‘different approach to disability discrimination’ than that currently prevailing in Australia under the Disability Discrimination Act 1992 (Cth) (see, eg, Novia Scotia (Workers’ Compensation Board) v Martin [2003] 2 SCR 504). 
• There was ‘considerable force in the Commission’s submissions’ that ‘interpretation of the Charter requires consideration of general human rights standards and jurisprudence, not simply the application of domestic cases concerning different statutory regimes’. 

Read together with the decision of Emerton J in Castles v Secretary to the Department of Justice [2010] VSC 310 (which stated that consideration of international jurisprudence ‘is a good thing, as it will expose Victorian jurisprudence to relevant jurisprudence from other parts of the world and, indeed, make Victorian jurisprudence more relevant in the international context), the decision of Kaye J in WBM v Chief Commissioner of Police [2010] VSC 219, in which his Honour eschewed reliance upon international jurisprudence in interpreting the right to privacy under the Charter, is increasingly isolated and anomalous. 

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/319.html.  

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

This is not the way things should be.  With real leadership, elections present an opportunity to tap into admirable but often latent aspects of national identity, a concept explored by Canadian political scientist Alison Brysk in her new book, Global Good Samaritans: Human Rights as Foreign Policy.  Why, Brysk asks, do a small number of countries sacrifice their national interest to promote human rights and help strangers?  Her simple answer is — they don’t.  Instead, she explains, countries such as Sweden, Canada and the Netherlands have nurtured national identities that have a deep commitment to human rights at their centre.  Global good samaritans, Brysk posits, see the “blood, treasure, and political capital they contribute to human rights as an investment, not a loss”.  Both at the local and international levels, they have learned to see themselves, she says, “as interconnected members of a community that works best for everyone when human rights are respected”.

What I’d really like to see in this election is our national leaders appealing to and mobilising the most constructive and admirable aspects of Australia’s national identity and committing to the nation’s development as a principled, persistent, fearless and forceful human rights champion in the region and on the international stage.

Certainly, we are well placed to be an effective human rights promoter state.  We are democratic and politically stable.  We are globalised and multicultural.  We have an active and well networked civil society.  We enjoy low levels of social stratification and high levels of economic development.  We are a secure regional middle power.

We also have much to gain from pursuing the human rights agenda and much to lose in failing to do so.  The positive side of the ledger includes the development of more stable and predictable international and regional policy environments, enhanced international credibility and diplomatic capital, strengthened policy coherence, and the mobilisation of universal, unifying national values.  Conversely, a failure to multilaterally address urgent human rights challenges, such as climate change and food and water insecurity, will have grave implications for global, regional and national peace, security and development.

What then, could Australia do to most actively and effectively contribute to the agenda of making human rights a human reality in the 21st century?

As a first step, Australia should develop a comprehensive strategy on human rights and foreign policy.  That strategy should mainstream human rights across all areas of Australian foreign affairs, including aid, development, trade, investment, migration, environment, business and security.  It should contain concrete measures and commitments to promote and protect human rights in the region and internationally.  Such a policy could enhance our international reputation as a human rights leader and build significant diplomatic capital.

Australia’s 2013-2014 UN Security Council candidacy could be a flagship for this policy.  As a Security Council candidate, we should commit to taking a principled, persistent and consistent approach to human rights internationally and to ensuring that our domestic policies and practices are human rights compliant.  We should use our Security Council candidacy to promote our national interest in international human rights, the rule of law and good governance.  There is good precedent for this.  In 1999-2000, Canada used its Security Council seat to promote the protection of civilians, focus international attention on the issue of “conflict diamonds”, and explore the relationship between business and human rights.

Australia should similarly take a proactive and principled approach to the UN Human Rights Council, whether as an active observer state or member. We have an important role in ensuring the Council fulfils its mandate, and achieves its potential, as the leading multilateral forum for the discussion, promotion and enforcement of human rights.

Both through the Security Council and other international and regional bodies, including trade and financial institutions, we should push a fearless and forceful human rights agenda.  This agenda should address existing human rights challenges – including poverty, financial instability and inequality – and pursue progressive initiatives, including operationalisation of the responsibility to protect, the abolition of the death penalty, the advancement of Indigenous peoples globally, and the regulation of business and human rights.

It is often observed that human rights begin at home.  The fulfilment of human rights at home is inextricably linked with our national identity and our capacity and ability to promote human rights abroad. Domestic human rights protection must be recognised as a core aspect of any comprehensive and coherent foreign human rights policy.

In order for Australia to adopt not only a principled and consistent, but also effective, approach to human rights in international affairs – from the death penalty, to child labour, to people trafficking, to a regional solution on asylum-seekers – human rights must become core business in internal affairs.  As US Secretary of State Hilary Clinton recently recognised, ‘By holding ourselves accountable, we reinforce our moral authority to demand that all governments adhere to obligations under international law.’

Australia’s status as the only Western democracy without a national human rights law undermines our authority and legitimacy on international human rights issues and in regional human rights dialogues.  A national Human Rights Act – rejected by the Rudd/Gillard Government – could promote more responsive and accountable government, improve public services, and enshrine fundamental values such as freedom, dignity, respect and a fair go.  Perhaps most importantly, however, a comprehensive national Human Rights Act could provide a framework for international, regional and domestic policy coordination and create a ‘virtuous circle’ in which a constructive national identity is mobilised which places human rights at the centre of our internal and external affairs.  The Canadian Charter of Rights and Freedoms has played precisely this role, placing human rights at the centre of both Canada’s self-perception and external engagement.

 Australia has what it takes to be a human rights promoter at home and abroad.  For Australia to realise our potential, however, will require real political leadership and legislative and institutional reform.  Most critically, it will require the mobilisation of a national identity that values human rights every bit as highly as beaches, barbecues, boomerangs, the Anzac spirit and the Ashes.  That is the opportunity that this Federal Election presents and the responsibility that the next Australian Government confronts.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

• An opinion piece on the future of the UK Human Rights Act and reflections for Australia by Professor Conor Gearty
• Human rights news, including in relation to the establishment of UN Women, a new report on the links between corporate law and human rights, information about the Australian Human Rights Register, and news from the HRLRC
• Updates on the National Human Rights Framework, including an opinion piece by the Hon Michael Kirby AC CMG on the need for principled human rights leadership, together with information about Human Rights Education Grants, and Coalition policy in relation to ‘discontinuing’ the Framework
• Updates on the Victorian Charter of Rights, including details of a new human rights toolkit for local government
• Victorian Charter case notes, including from the Supreme Court (access to reproductive healthcare and the right to humane treatment in detention), the Coroners’ Court (right to life requires inquests to address systemic and prevention issues), and VCAT (right to equality and anti-discrimination exemptions; special measures; application of Charter to planning schemes and law; application of Charter to guardianship and administration; and ‘proper consideration’ of rights in a public housing context)
• Comparative law case notes on significant recent human rights decisions from Canada (balancing freedom of expression and the right to a fair trial; freedom of expression and access to information; freedom of expression and protection of journalistic sources), the UK (control orders and the deprivation of liberty; torture and the transfer of prisoners; and extra-territorial application of the Human Rights Act), the European Court of Human Rights (same-sex marriage and the right to equality) and India (right to life and prevention of poverty)
• Information about the Centre’s policy work, including in relation to a major NGO report on Australia to the UN Committee on the Elimination of Racial Discrimination, a joint NGO report to the UN Human Rights Council for the Universal Periodic Review of Australia, human rights and Australia’s role and responsibility in the Asia-Pacific, and an update on Australia’s implementation of the Concluding Observations of the UN Human Rights Committee
• Updates on the Centre’s casework and litigation, including a landmark judgment on prisoner access to healthcare and humane treatment in detention, a major voting rights case lodged in the High Court, and the Centre’s intervention in a coronial inquest regarding the police shooting of a 15 year old boy
• Details of forthcoming human rights seminars and events, including an HRLRC seminar on human rights and foreign policy on 16 August (with Prof Alison Brysk, the Hon Malcolm Fraser, Chris Sidoti and Daniel Flitton) and on human rights and counter-terrorism on 24 August (with Prof Martin Scheinin, the UN Special Rapporteur on Human Rights and Counter-Terrorism)
• Information about useful human rights resources, including HRLRC in the news, and a new book on ‘next generation NGOs’
• Updates on major international human rights developments from our foreign correspondent in Geneva, Ben Schokman (HRLRC Director of International Human Rights Advocacy)
• ‘If I were Attorney-General’, being a 10-point Human Rights Plan for the next Australian Government by the HRLRC

Opinion

The UK Election and the Future of the Human Rights Act: Australia Has Much to Gain

The unusual result of the recent British general election appears to have saved the country’s Human Rights Act from immediate extinction.  The Conservative Party had been clear about its intention to repeal the Act if elected into government.  Passed in 1998 at the very start of Labour’s long tenure in office, the Act requires legislation to be compatible with the European Convention on Human Rights and equips the courts to re-interpret legislation to achieve this end.  But it does not allow the judges to strike down laws on the model of the US constitution or any of the many analogous European systems.  Instead the courts may issue ‘declarations of incompatibility’ in respect of such laws.  These are unenforceable, requiring only that the other branches of government consider whether to bring the challenged law into line with human rights.  So, the Act goes much further than the Australian Government’s new ‘Human Rights Framework’, but at the same time not nearly as far as fully-fledged constitutional rights systems like those of the US and Ireland.

The intention behind the British approach was to achieve a compromise between the tradition of UK parliamentary sovereignty and the current vogue for the infiltration of enforceable human rights standards into democratic culture.  It has worked fairly well on the whole, with the judges being pretty robust in their interpreting of statutory provisions so as to ensure they fit with the Convention rights, while usually contriving to do this without leaving themselves open to the accusation of having overridden entirely Parliament’s wishes.  So, rape trials have been rendered fairer for the accused, same sex couples have been given rights of succession to tenancies on the same basis as heterosexuals, and asylum-seekers have been required to be fed rather than left to starve on the streets.  But other controversial matters where the statutes in question have been clearer (the indefinite detention of suspected terrorists, the rights of transsexuals, and certain controversial sentencing matters) have been made the subject only of declarations of incompatibility. 

Under the Labour government, these declarations have usually provoked a response – the trend has been to accept the judges’ condemnation despite there being no legal obligation to do so.  Even the very controversial ‘Belmarsh’ detention case (involving a ruling by Britain’s senior judges that the detention without trial of suspected terrorists was a breach of the right to liberty and was not warranted by the government’s derogation from that right) was a breach of the right to liberty and was not warranted by the government’s derogation from that right) was reflected in later legislation replacing the impugned system with a new framework rooted in control rather than imprisonment.  For its part, the European Court of Human Rights in Strasbourg (which has of course retained its oversight role here in the UK as elsewhere in Council of Europe countries) is content that these declarations amount to an ‘effective remedy’ for breach of the Convention (a right under article 13 of the Convention) so long as there emerges a consistent practice of implementation.  And there matters have rested for now. 

So if it has worked quietly and well, why has the law been controversial?  Relatively undefended by the Labour government (which while abiding by it gave the impression it regretted the initiative almost from the moment of its enactment) and fiercely unpopular with the right-wing media (it had the word ‘Europe’ in it), the Conservative Party in opposition chose to see it as a symbol of ‘political correctness’ gone mad, another example of unnecessary pandering to unpopular minorities, such as prisoners, asylum seekers, and – most of all – terrorists.  It didn’t help that the media reported various crackpot attempts to use the Act as evidence of what the Act had brought about: as every child could tell you, launching a case (which anyone can do) is different from winning (which depends on a sensible argument and a successful piece of advocacy), but neither antagonistic journalists nor Conservative critics allowed such an inconvenient truth to get in the way of their fury. 

A particular source of anger which was, however, rooted in fact was the extra-jurisdictional reach of the Act.  UK courts applied the Strasbourg authorities in a way that led to a number of high profile non-citizens, who were regarded with distaste by the state, being nevertheless allowed to remain in the country because there was nowhere to which they could be expelled without a serious risk of their being killed or tortured.  The Conservatives have wanted to be able to throw people out where national security required it without having to worry about what happened to them afterwards.  But curiously, despite this strong line, David Cameron was clear before the election that even with the Human Rights Act gone he was not against the continued oversight of the European Court of Human Rights.  Now the Liberal Democratic Party has saved him from the embarrassment of having created a momentum for more, rather than less, European entanglement in British affairs.

Nick Clegg’s Liberal Democrats are keen defenders of both Europe and human rights and, far from wanting the law repealed, they would like it expanded into more areas of policy.  The Party hankers after a written constitution which they are almost certain not to get – but their enthusiasm for the Human Rights Act is likely to be tolerated by Mr Cameron and his team as one of the prices to be paid for partnership.  It is the same with the more ‘British’ commitment to civil liberties which Clegg’s party are so keen on and which historically the Conservatives care about only when in opposition.  The strains will become evident when the media blames the Human Rights Act for this or that court decision which is said to be ‘soft’ on crime or on ‘terrorists’ – expect frequent wry comments from the Conservatives about how weak their partners are, how naively liberal and (if there happen to be more bombs) how dangerous to national security. 

A further source of tension is likely to come from media efforts to tone down the respect for privacy which the Act has promoted and which has traditionally not been part of UK law.  The lively tabloid press, in particular, despise this as a commercially damaging control on their endless intrusion into the lives off celebrities and footballers.  The Conservatives will want to do their best to please the editors and owners of papers that delivered to them such hysterical support at election time, and which promises to do so again.  But the Liberals cannot junk the Act (and therefore the law of privacy) as to do so would be to cut off a central aspect of their identity.

So against the odds, the Act survives the change of administration and in a British system so famously dependent on tradition and convention this means that it is much closer to being unassailable than it was when it was under the care of one party alone.  A question-mark remains about what will happen to declarations of incompatibility under the new regime: like Labour before them, the Liberal Democrats will want to implement them, while the Conservatives will probably prefer to pretend they have never happened.  This will confuse the European Court and lead almost certainly to findings of breaches of article 13.  That is, however, for the future, and if Strasbourg’s backlog continues to mount, for the very distant future.  If the Act does indeed become a constitutional fixture then Britain will have cause to celebrate an approach to human rights which provides a unique synthesis between law and democratic politics, requiring the judges to act to guarantee rights but not at a price of disproportionate intrusion into the political arena.  No Australian government of any political colour has anything to fear from such a light-touch measure, and the Australian people – indeed all those within Australia – would have much to gain.

Conor Gearty is Professor of Human Rights Law at London School of Economics and a Barrister with Matrix Chambers.  He was a prominent opponent of the campaign for a UK Human Rights Act.

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News  

UN Establishes New Women’s Agency to Promote Gender Equality and Empowerment

In an historic move, the United Nations General Assembly has voted unanimously to establish a new UN agency to promote and accelerate gender equality and empowerment worldwide. 

The new agency, to be known as UN Women, will have two key roles:

• First, it will assist in the development of policies, practices and norms to promote gender equality and empowerment.
• Second, it will assist Member States to implement these standards through technical and financial support, monitoring and partnerships. 

Welcoming the establishment of UN Women, UN Secretary-General, Ban Ki-moon, said ‘UN Women will significantly boost UN efforts to promote gender equality, expand opportunity, and tackle discrimination around the globe.’

The creation of UN Women, which will be operational by January 2011, was also welcomed by Australia, with the Foreign Minister, the Hon Stephen Smith, stating that the new agency will ‘allow better coordination of global efforts to promote gender equality and empower women.  Australia believes this will help women in developing countries through more streamlined responses by the UN system and donor countries.’

UN Women will be lead by an Under-Secretary-General, who will be a member of the Secretary-General’s cabinet.  According to Human Rights Watch, ‘So much of the promise of the new women’s agency depends on finding a leader who can secure the funding and enhanced support that has been pledged.  The Secretary-General should conduct an open and transparent search for a highly skilled champion for women’s equality and rights capable of bringing this vision to fruition.’ 

For more on UN Women, visit: www.unwomen.org. 

Major Multi-Jurisdictional Report on the Links between Corporate and Securities Law and Human Rights

This month the Special Representative of the UN Secretary-General on Business and Human Rights, Harvard Professor John Ruggie, posted the results of a research project that examined whether and how corporate and securities law in more than 40 jurisdictions around the world currently fosters corporate respect for human rights.

To the Special Representative’s knowledge, this is the first in-depth, comparative study of the links between human rights and corporate and securities law.  More than 20 leading corporate law firms from around the world participated in the research on a pro bono basis, with Allens Arthur Robinson contributing a report on Australia as well as several other states in the Asia-Pacific region.

The project forms part of the Special Representative’s work to operationalize what is now commonly known as the UN Protect, Respect and Remedy Framework for business and human rights.  The Framework was welcomed unanimously by the UN Human Rights Council in 2008 and it enjoys broad support from all stakeholder groups.  It rests on three differentiated yet complementary pillars: the state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; the corporate responsibility to respect human rights, which in essence means to act with due diligence to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial.  This project focuses on the role of states regarding corporate and securities law and policy, but it is also relevant to the concerns of the other two pillars.

An overarching trends paper from the project is available at www.reports-and-materials.org/Ruggie-corporate-law-project-Jul-2010.pdf.  The main conclusions of the paper are that:

• Current corporate and securities law does recognize human rights to a limited extent.  Put simply, where human rights impacts may harm companies’ short or long term interests if they are not adequately identified, managed and reported, companies and their officers may risk non-compliance with a variety of rules promoting corporate governance, risk management and market safeguards.  Even where the company itself is not at risk, several states recognize through their corporate and securities laws that responsible corporate practice should not entail negative social or environmental consequences, including for human rights.
• At the same time, there is a lack of clarity in corporate and securities law regarding not only what companies or their officers are required to do regarding human rights, but in some cases even what they are permitted to do.  Moreover, there appears to be only limited (to non-existent) coordination between corporate regulators and government agencies tasked with implementing human rights obligations.  As a result, companies and their officers appear to get little if any official guidance on how best to oversee their company’s respect for human rights.

Some of the jurisdiction-specific surveys are already available on the project website (http://www.business-humanrights.org/SpecialRepPortal/Home/CorporateLawTools), including the survey for Australia. 

To date, two consultations have been held to inform this project.  The first, attended by participating law firms, was held in New York in June 2009.  It explored current state practice, including implementation and enforcement in this area.  The second was a multi-stakeholder expert consultation convened by York University’s Osgoode Hall Law School in Toronto in November 2009.  Participants discussed potential policy and legal reform in this area.  Summaries of both consultations are available at the project website. 

The Special Representative is currently working on final Guiding Principles on the UN Framework to be presented to the UN Human Rights Council in June 2011.  In doing so, he will consider what guidance might be appropriate to include on the issues explored in this project.  Accordingly it is important that he continues to hear feedback from experts in both the corporate governance and human rights fields from all stakeholder groups.

Vanessa Zimmerman works as a Legal Advisor to the UN Special Representative on Business and Human Rights.  Questions about the project may be sent to: vanessa_zimmerman@hks.harvard.edu, and information generally about the Special Representative’s mandate and work is available at: http://www.business-humanrights.org/SpecialRepPortal/Home. 

Call for NGO Entries to the Australian Human Rights Register

The Human Rights Law Resource Centre, in conjunction with the Human Rights Working Group of the Victorian Federation of Community Legal Centres, has recently launched the Australian Human Rights Register.  The Register provides a quick and easy opportunity for NGOs to record human rights developments.  This database will be a useful tool in human rights advocacy and documentation.

Through the collation of human rights stories, the Register seeks to inform, build knowledge and capture the experiences of NGOs in the field, their observations arising from case work, service delivery and policy changes that affect the human rights of Australians.

The data collected from the Register will be compiled in an annual report to be used for the purpose of advocacy in documentation and submissions for change, public speaking and communication with key decision-makers, including the United Nations bodies responsible for advancing human rights, media and lobbying for improved outcomes and human rights.

Please encourage your agency and others Australia-wide to contribute to this very important audit of human rights to ensure the better protection and enhancement of human rights and to raise awareness of the reality of human rights for members of our community.

The Register only takes entries from NGOs and not from individuals.  

The process for making an entry is quick and easy!  Please take a few moments of your time to visit the Register’s website at www.hrlrc.org.au/australian-human-rights-register/.

Entries to the Register will be accepted until 31 October 2010.

For further information, contact HumanRightsRegister@hrlrc.org.au.  We hope to hear from you!

Loren Days is a volunteer lawyer with the Human Rights Law Resource Centre

HRLRC News

• You can now follow the Human Rights Law Resource Centre on Twitter, at @rightsagenda or by clicking on the Twitter icon at www.hrlrc.org.au. 
• The Centre has recently been formally associated and accredited with the UN Department of Public Information, give Centre staff access to UN facilities and all open UN meetings.
• Ben Schokman, the Centre’s Director of International Human Rights Advocacy, has returned to the office following a three month placement with the International Service for Human Rights in Geneva.  Emily Howie, the Centre’s Director of Advocacy and Strategic Litigation, will commence a three month placement with ISHR on 26 July 2010.

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National Human Rights Framework

Coalition to ‘Discontinue Human Rights Framework’ if Elected

The Federal Opposition has announced that it will ‘discontinue funding for Australia’s Human Rights Framework’ under an Abbott Government.  The announcement was made in the context of a commitment to ‘deliver budget savings’ and ‘take pressure off interest rates’.  The Opposition also pledged to discontinue funding for Australia’s UN Security Council Candidacy and law and justice programs in Africa.

Australia’s Human Rights Framework Education Grants

The Australian Government has launched a grants program to ‘provide funding to non-government organisations to prepare and deliver human rights education programs to the Australian community’.  Under the program, ‘the Government will fund a range of community organisations to develop and /or deliver programs that are appropriately targeted and address the information needs of different groups’.

To be eligible for funding, projects must:

• promote in a practical way the rights and responsibilities of individuals as members of a tolerant, inclusive society, and
• promote community awareness of, engagement with and understanding of the rights and freedoms recognised and declared under the seven core United Nations human rights treaties to which Australia is a party. 

Applications close 30 July 2010.  For further information, see www.ag.gov.au/hrgrants. 

Human Rights Rebuffed

On 21 April 2010, the Federal Government administered the quietus for an Australian Charter of Rights.  Instead of a Charter, we now have a ‘Framework’ for better human rights protection in Australia.  This ‘Framework’ comprises five parts:

• a re-affirmation of the nation’s commitment to international human rights obligations;
• a new emphasis and expenditure on human rights education across the community;
• an enhancement of domestic and international engagement on human rights issues;
• an improvement in domestic human rights protections, including greater parliamentary scrutiny; and
• the achievement of greater respect for human rights principles within the community, including by the reform of current anti-discrimination legislation. 

Needless to say, the foregoing innovations, although admirable on their own, did not satisfy those of us who hoped that Australia would at last take a step to join the rest of the civilised world with comprehensive human rights legislation.  The expenditure of over $12 million on education initiatives to promote a greater understanding of human rights is welcome.  However, necessarily, it will do nothing to afford redress to those for whom the political process and other present legal remedies are unavailing.  The proposed establishment of a new parliamentary joint committee on human rights within the Australian Parliament ‘to provide greater scrutiny of legislation for compliance with international human rights obligations’ is also welcome.  However, as Professor George Williams, has observed, ‘It will make little difference to the protection of human rights at the community level.  It will even more starkly demonstrate how self-regulation by politicians, when it comes to human rights, is the problem, and not the solution’. 

The promise of reform of anti-discrimination legislation, including the rationalisation of current laws in a single statute, has obvious advantages, but it is significant that there are no new proposals for protection of minorities presently falling outside present federal law, including a general protection against discrimination on the grounds of a person’s sexual orientation. 

The commitment to reinforce engagement with international human rights obligations is certainly to be applauded.  However, it can not escape criticism addressed to the suggested difference between governmental rhetoric and the actuality.  Particularly so because the announcement closely coincided with another, envisaging mandated delays in administrative consideration of refugee applications originating from Afghanistan and Sri Lanka.   The basis for such delays, whilst the applicants are typically held in immigration detention, finds no foothold in national obligations assumed by Australia under the Refugees Convention and Protocol.  Instead, it appears to be based on considerations of political expediency in the face of electoral sensitivities about the arrival of ‘boat people’ and the approach of a national election in late 2010.

Comparing the extensive report of the National Human Rights Consultation and the sparse Framework announced by the Federal Government, it is difficult to sustain the contention that Australia has no need, and no demand, for a charter of rights.  The report connected numerous areas of unrepaired disadvantage of, and discrimination towards, minorities.  It did this in the case of Indigenous people; racial minorities; non-citizens; people of minority sexual orientation and gender identity; women.  It also documented the failure of present laws and institutions to address problems of homelessness, police shootings, inadequate health care, prison conditions, arbitrary and extended detention, discrimination in police practice governing the use of arrest, official targeting of particular groups, inequality in the administration of immigration law, defects in protection of children, and significant failings in protection of individual conscience and religion in Australia. 

Obviously Australia remains a generally well governed and diverse society with significant legal protections for human rights, protected by democratic elections and the rule of law administered in independent courts.  Still, according to the former Chief Justice of the High Court of Australia, Sir Gerard Brennan, ‘The exigencies of modern politics have sometimes led Governments to ignore human rights in order to achieve objectives which are said to be for the common good’.

A charter of rights would not have cured every defect or gap in the Australian legal system.  There is significant evidence, however, that it would have contributed to good government, the alleviation of disadvantage, and the promotion of dignity and equality. 

Why then did politicians on both sides of Australia’s major political groupings, supported by large sections of the media, oppose the recommendations proposed by the national consultation? 

In part, it was just a resistance to new ideas. 

In part, it was the absence of a political champion. 

In part, it appears to have been a case of the traditional hostility to the very notion that human beings have universal rights which should be respected. 

In part, it was the objection of non-lawyers to any perceived enlargement of the power of lawyers. 

In part, the resistance in Australia can also be traced to some who have a genuine admiration for the parliamentary institution; but fail to grasp its need for an occasional stimulus to require it to address injustices towards unpopular and forgotten minorities. 

In part, it is simply the crude fact that those who presently enjoy power in a society such as Australia (politicians and media) are reluctant to surrender any part of that power or influence.  As Professor George Williams put it, ‘people with power don’t want to give it up’.  They do not relish the idea of independent courts responding to complaints of otherwise powerless individuals and making interpretative endeavours to respond to their complaints or declarations of a public kind that cannot be easily swept under the carpet.  Courts are amongst the few sources of power in society that do not succumb to the seductions or bullying of politicians or of the media. 

Far from undermining the parliamentary institution or process, the recommendation of the Australian consultation, based in part on the New Zealand and United Kingdom models before it, was aimed at enhancing the capacity of parliament to work more responsively to the concerns of ordinary people.  Given the way in which the parliamentary institution in all Westminster democracies has fallen under the power of executive government and the discipline of party whips, the need for renewal of the parliamentary institution is plain.  That need has been acknowledged, and in part met, in New Zealand and the United Kingdom.  In Australia, once again, it has been rebuffed.

The Hon Michael Kirby AC CMG is a former judge of the High Court of Australia and has recently been conferred with the prestigious Gruber Justice Prize 2010.  This is an edited version of a paper delivered at Salsford University School of Law, UK, to mark the 10th anniversary of the Human Rights Act 1998.

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Victorian Charter of Rights Developments

From Compliance to Culture: A Toolkit for Local Governments

A new toolkit has been developed to help local governments meet their legal obligations under the Charter of Human Rights and Responsibilities.  Developed by the Victorian Local Governance Association, the toolkit provides a practical framework for local government to implement human rights into their laws, policies, process and practices.

The toolkit was launched at a symposium hosted by the VLGA and the Victorian Equal Opportunity and Human Rights Commission, which looked at how local councils have embraced human rights practices in the three years since the Charter came into effect.

The toolkit is available at www.humanrightstoolkit.vlga.org.au.

Victorian Equal Opportunity and Human Rights Commission

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Victorian Charter Case Notes

Right to Humane Treatment in Detention and Prisoner Access to Health Care

Castles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010)

On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment.  The finding overturns a decision by the Secretary of the Department of Justice to deny Ms Castles access to IVF treatment and means that Ms Castles will be eligible for permits to leave prison on a visit-by-visit basis. 

The judgment affirms the principle – well-established in international human rights jurisprudence – that prisoners should not be subjected to hardship or constraint other than that which necessarily results from the deprivation of liberty.  Particular attention is paid to the fundamental importance of prisoners’ access to healthcare and IVF treatment is recognised as legitimate treatment necessary for the preservation of health. 

This matter was run on a pro bono basis by the Human Rights Law Resource Centre, together with Blake Dawson, Debbie Mortimer SC and Michael Borsky of Counsel. 

Facts

Ms Castles was convicted of social security fraud in November 2009 and sentenced to three years imprisonment, to be released on her own recognisance after 18 months.  She is currently imprisoned at HM Prison Tarrengower, a minimum security women’s prison with an emphasis on release preparation and community integration. 

Prior to her incarceration, Ms Castles had been receiving IVF treatment for over a year.  From 27 November 2009, Ms Castles and her lawyers made repeated requests for approval for Ms Castles to continue to access IVF at her own cost, emphasising that she would become ineligible for treatment from December 2010 by reason of her age.  By late-April 2010, the Secretary for the Department of Justice had still failed to make a decision, despite the prospects of Ms Castles becoming pregnant through IVF decreasing significantly with the passage of time. 

Ms Castles commenced proceedings on 23 April 2010 with an application for interlocutory relief which was refused. 

On 3 May 2010, the Secretary of the Department of Justice made a decision to deny Ms Castles’ request to access IVF treatment.  The Secretary reasoned that Ms Castles ‘does not have an entitlement to this form of medical treatment’ and cited, among other things, resource constraints and the precedent that may be set by allowing Ms Castles to access treatment.  

At the full hearing Ms Castles argued that she had a right under s 47(1)(f) of the Corrections Act 1986 (Vic) to access IVF treatment.  Section 47(1)(f) provides that all prisoners have a right to ‘have access to reasonable medical care and treatment necessary for the preservation of health’. 

Ms Castles also relied on her rights under the Charter of Human Rights and Responsibilities Act 2006 to privacy and family (s 13), equality (s 8) and to humane treatment in detention (s 22) and on common law duties owed to her as a prisoner. 

Decision

Emerton J found that Ms Castles has a right under s 47(1)(f) of the Correction Act to undergo IVF treatment.  The Corrections Act was found to entitle prisoners to ‘do more than remain in a “holding pattern” with respect to their heath while imprisoned.’

Her Honour held that IVF treatment is both necessary for the preservation of Ms Castles’ reproductive health and reasonable given:

• the commitment to the treatment that Ms Castles has already demonstrated;
• her willingness to pay for further treatment; and
• her age and the fact that she will become ineligible for further treatment before she is released from prison.

Accordingly, Ms Castles will be eligible for permits to leave the prison on a visit-by-visit basis, providing that adequate consideration has been given to security and resource issues.     

The Court recognised that IVF is ‘a legitimate medical treatment for a legitimate medical condition’.  In a landmark statement on the status of reproductive healthcare, her Honour held:

I see no proper basis to treat IVF treatment differently from other forms of medical intervention that are considered to be necessary to enable people to live dignified and productive lives, unencumbered by the effects of disease or impairment.

Application of the Victorian Charter

The Charter did not determine the issue before the Court.  Nevertheless, the judgment includes extensive comment on various Charter provisions. 

Right to humane treatment in detention (s 22)

The Court found that the right to humane treatment in detention:

[r]equires the Secretary and other prison authorities to treat Ms Castles humanely, with respect for her dignity and with due consideration for her particular human needs.

Her Honour took as a starting point that prisoners should not be subjected to hardship or constraint other than that which results from the deprivation of liberty and accepted that:

access to health care is a fundamental aspect of the right to dignity.  Like other citizens, prisoners have a right to…a high standard of health.  That is to say, the health of a prisoner is as important as the health of any other person. 

The Court stated that the right articulated in s 47(1)(f) of the Corrections Act ‘must be construed consistently with the requirement that prisoners be treated with humanity and with respect for their human dignity’.  This right does not entail access to any treatment that a prisoner may want or have access to were he or she not imprisoned, but does require provision of ‘a variety of facilities, goods, services and conditions necessary for the realisation of a high standard of health’. 

Right to privacy (s13)

The Court found that while the right to privacy is a fundamental ‘right of considerable amplitude’, it was not engaged in the proceeding.  Relying largely on the Charter’s Explanatory Memorandum, which states that ‘[i]t is not Parliament’s intention to create a right to found a family’, her Honour held that: 

the Charter rights which might otherwise have encompassed rights to ART, recognition of legal parentage and adoption should be construed as not encompassing such rights. 

The Victorian Equal Opportunity and Human Rights Commission, intervening under s 40(1) of the Charter, argued against this interpretation and its submissions were adopted in full by the plaintiff.  The Commission submitted that the omission of a right to found a family from the Charter was merely intended to ensure that the Charter did not pre-empt the results of a Victorian Law Reform Commission reference on assisted reproduction and adoption and should not restrict the scope of other rights that are protected in the Charter. 

The right to equality (s 8)

The Court concluded that there had been no breach of the right to equality and non-discrimination on the basis of impairment.  The Court found that Ms Castles had not received less favourable treatment than that afforded to a fertile prisoner who wishes to become pregnant.  Further, infertility was found not to be ‘a substantial reason’ for the denial of a permit to access IVF treatment as required by the Charter read in conjunction with s 8(2) of the Equal Opportunity Act 1995 (Vic). 

Obligation to ‘give proper consideration’ to human rights (s 38(1))

The plaintiff submitted that the Secretary had failed to give ‘proper consideration’ to human rights, as required by s 38(1) of the Charter.  In response, the defendants referred to briefings from Justice Health and Corrections Victoria which had been provided to the Secretary and which considered human rights (although relevant sections were redacted to remove legal advice from the Victorian Government Solicitor’s Office). 

In consideration of this issue, the Court held that the requirement to give proper consideration ‘requires a decision maker to do more than merely invoke the Charter like a mantra’ and to ‘seriously turn his or her mind to the possible impact of the decision on a person’s human rights’, but ‘should not be a sophisticated legal exercise’.  Rather, proper consideration should be taken to involve:

understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. 

It was held that consideration of human rights in accordance with s 38(1) of the Charter should not be ‘overly scrutinised by the courts’. 

Use of international jurisprudence in defining rights (s 32(2))

In considering the content and application of rights, the Court affirmed the relevance of human rights decisions and commentary from overseas, referring to jurisprudence from the European Court of Human Rights, the UK House of Lords, New Zealand, UN treaty bodies and international human rights experts.  Her Honour stated that consideration of international jurisprudence:

is a good thing, as it will expose Victorian jurisprudence to relevant jurisprudence from other parts of the world and, indeed, make Victorian jurisprudence more relevant in the international context.

This approach may be contrasted with that taken in another recent judgement of the Supreme Court, WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010), in which Kaye J declined to rely upon international jurisprudence in his interpretation of the right to privacy under the Charter.  

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/310.html. 

Rachel Ball is Director of Policy and Campaigns with the Human Rights Law Resource Centre

Coroners Court Determines that Right to Life Requires Inquiries to ‘Address Systemic and Prevention Issues’

Coronial Investigation of 29 Level Crossing Deaths – Ruling on the Interpretation of Clause 7(1) of Schedule 1 of the Coroners Act 2008 (Vic) (25 June 2010)

The Coroners Court has held that right to life under s 9 of the Charter of Human Rights and Responsibilities Act requires that questions as to jurisdiction and interpretation in the Coroners Court be resolved to enable inquiries to ‘address systemic and prevention issues’. 

In this case, the Coroner, Jane Hendtlass, was required to determine whether the old Coroners Act 1985 or the new Coroners Act 2008 applies to an investigation into 29 deaths that occurred in circumstances where a train and a motor vehicle collided on a level crossing in Victoria.  All of the deaths occurred between 2002 and 2009 when the old Act was in operation. 

The relevant difference between the Acts is that the new Act requires the Coroner to give greater consideration to ‘public health and safety issues’. 

The Coroner ruled that the new Act applies. 

In reaching this conclusion, the Coroner was fortified by the Charter of Human Rights and Responsibilities Act, holding that the obligation under s 32(1) to interpret all legislation compatibly with human rights required that, wherever possible ‘interpretation of the law in the Coroners Court must give effect to the public health and safety provisions of the new Act.’  The Coroner further stated that an interpretation of the law such that the new Act, with its preventative focus, be held to apply to the inquest is ‘consistent with Australia’s international obligations under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and s 9 (right to life) of the Charter of Human Rights and Responsibilities Act’.  She rejected a submission that the old Coroners Act, which does not have such a preventative and systemic focus, ‘satisfies the requirements of the right to life’. 

The Coroner also drew on comparative human rights jurisprudence to support this conclusion, noting that:

The Court of Appeal in England (Secretary of State for Defence v The Queen (on the application of Mrs Catherine Smith) & Ors [2009] EWCA Civ 441) has determined that, in circumstances in which the government is responsible for providing appropriate safety measures, this obligation requires the coroner to conduct an Inquest that investigates not only the immediate circumstances of the death but also the possibility of systemic failure on the part of the authorities to protect life.  In England this is called an Article 2 Inquest which refers to Article 2 of the European Convention of Human Rights (the right to life). 

Therefore, by analogy, in order to comply with the State’s requirement to protect the right to life, an Inquest in relation to the level crossing deaths must address broader systemic and prevention issues that may have contributed to the death as provided under the New Act.

The Ruling is at www.coronerscourt.vic.gov.au/wps/wcm/connect/justlib/coroners+court/home/case+rulings/coroners2+-+rulings+-+level+crossing+ruling. 

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

Right to Equality and Anti-Discrimination Exemptions

Members of Owners Corporation on Plan of Subdivision No 441923W (Anti-Discrimination Exemption) [2010] VCAT 1111 (28 June 2010)

In this decision, McKenzie DP refused to grant a proposed exemption because it was not the least restrictive means of achieving the desired outcome, contrary to s 7(2)(e) of the Charter.

Facts

This exemption application related to units built in Upper Ferntree Gully, which were designed specifically for use by the elderly.  The units are designed for easy mobility, and located opposite an aged care facility.  The owners’ corporation (body corporate) of the property currently has an exemption from the EO Act allowing it to sell its units only to people aged over 55 years.  This exemption expires in February 2011.

The members of the owners’ corporation applied to have the existing exemption replaced with a new exemption enabling the owner of each unit to restrict occupation only to people aged over 55, when selling, leasing or offering to sell or lease the unit.  This would allow them to sell their units to persons aged under 55, as long as the unit is occupied by an older person, and thereby more easily dispose of their units.  Without an exemption, this conduct would constitute age discrimination under the EO Act.

Decision

Deputy President McKenzie followed the reasoning of Justice Bell in Re Lifestyle Communities Ltd (No3), which was an (unsuccessful) application for an exemption to provide accommodation to people only over the age of 50.  Accordingly, McKenzie DP held that VCAT’s discretion to grant an exemption from the EO Act ‘must be exercised in a way compatible with human rights’.

Deputy President McKenzie identified the rights to equality and freedom of movement as being engaged by the proposed exemption, and considered whether granting the proposed exemption would be demonstrably justified under s 7(2) of the Charter.  Deputy President McKenzie held as follows.

1. The purpose of the proposed exemption is to ensure that homes designed for use by the elderly are used for that purpose, which in turn is likely to enable persons who are elderly and frail to live independently in the community for longer.  This is an important purpose. 
2. The proposed exemption may disproportionately interfere with the right to equality, even though it is restricted to occupants of the units.  For example, it was accepted that a person under 55 could live in the unit as long as they were living with a person over 55.  However, the younger person would not be able to continue to live at the unit if the older person were admitted to a nursing home.
3. There is a less restrictive means of achieving the purpose of the limitation.  That is, the units could be offered for lease or sale with a statement that it was designed for and most suitable for those aged over 55.  McKenzie DP granted the applicant liberty to apply for an exemption to this effect.

For the above reasons, the proposed exemption was held to be an unreasonable limitation on human rights and the application was denied. 

The decision is at www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2010/1111.html. 

Melanie Schleiger is a Senior Lawyer in the Human Rights & Civil Law Service, Victoria Legal Aid, and a Board member of the Human Rights Law Resource Centre

Right to Equality and Anti-Discrimination Exemptions: Special Measures to Reduce Disadvantage

Department of Human Services & Department of Health (Anti-Discrimination Exemption) [2010] VCAT 1116

In this decision, McKenzie DP granted an exemption on the basis that it constitutes an appropriate special measure to reduce disadvantage caused by discrimination, as permitted by s 8(4) of the Charter. 

Facts

The Department of Human Services and the Department of Health (Departments) applied for a three year exemption from the prohibition on race discrimination under the EO Act to enable the Departments to advertise for and employ up to 118 Indigenous people for positions within the Departments.  The proposal is part of an Aboriginal Public Sector Employment and Career Development Plan (Action Plan), which aims to reduce disadvantage suffered by Indigenous Victorians by promoting the education and employment of Indigenous Victorians in the public sector.  The Action Plan is the result of wide-ranging consultation with the Indigenous community, public sector officials and key union groups.  It also has high-level endorsement, including from the Premier.

The Departments submitted extensive material setting out the proposal and the context of the proposal, including the following statistics.

• 76% of non-Indigenous Victorians complete high school, compared with 31% of Indigenous children.
• 18% of non-Indigenous Victorians enrol at university, compared to 3% of Indigenous Victorians.
• 73% of non-Indigenous Victorians of working age are in employment, compared to 54% of Indigenous Victorians.

Deputy President McKenzie acknowledged the compounding effects of disadvantage.  For example, home ownership depends on financial resources, which in turn depends on employment, which in turn depends on educational qualifications.

Decision

Deputy President McKenzie applied the same legal principles discussed above, and determined that the exemption should be granted.  She considered that the right to equality (ss 8(2) and (3)) and the right to have equal access to the Victorian public sector (s 18(2)(b)) were relevant Charter rights. 

However, McKenzie DP held that s 8(4) of the Charter applies to this proposal.  Section 8(4) provides that a measure does not constitute discrimination if it is taken to assist or advance a group that is disadvantaged because of discrimination.  However, interestingly, McKenzie DP held that s 82 of the EO Act, which permits the provision of special services or benefits to a class of persons to reduce disadvantage, did not apply so clearly that the exemption is unnecessary.  This indicates a potential view that s 8(4) of the Charter has a broader and more beneficial application than s 82 of the EO Act.

Deputy President McKenzie was also of the view that the proposal was a reasonable limit on human rights in the Charter.  This is because the proposal is intended to redress disadvantage caused by discrimination, which is an important purpose, and relates to only a small fraction of the total public sector workforce.  She also noted the strong and overriding ‘public interest in addressing and reducing the clear disadvantage in employment from which Indigenous Victorians suffer’.  She considered that the proposal, in conjunction with various other support mechanisms included in the Action Plan, would not just increase employment of Indigenous Victorians, but might also encourage Indigenous Victorians to stay longer at school and enter university.

The decision is at www.austlii.edu.au/au/cases/vic/VCAT/2010/1116.html. 

Melanie Schleiger is a Senior Lawyer in the Human Rights & Civil Law Service, Victoria Legal Aid, and a Board member of the Human Rights Law Resource Centre

Application of Charter to Planning Schemes, Decisions and Considerations

Smith v Hobsons Bay City Council [2010] VCAT 668 (12 May 2010)

A recent VCAT decision establishes that a planning scheme provision limiting views into existing secluded private open space and habitable room windows is not incompatible with the Charter.  VCAT also held that a local council does not act in a way that is incompatible with the Charter when exercising its discretion to maintain, modify or delete a planning permit condition requiring the overlooking of premises to be mitigated.

Facts

Gary Stooke obtained a planning permit from Hobsons Bay City Council, authorising a pergola and first floor balcony to be added to his premises.  His architect, Rodger Smith, applied to VCAT to delete a condition of the permit.  The condition required a screen to be built on the balcony to prevent it overlooking an adjacent property, owned by John and Sharon Davey.

During the merits hearing, Mr Davey alleged that the proposed balcony, if not screened, would breach his right to privacy under s 13 of the Charter.  The issue was referred to Deputy President Dwyer for separate determination.

Decision

Deputy President Dwyer considered whether cl 54.04-6 of the Hobsons Bay Planning Scheme, which dealt with overlooking, infringed a Charter right.  In doing so, the Deputy President utilised the ‘three-step process’ set out by the Court of Appeal in R v Momcilovic [2010] VSCA 50. 

The first step was to ascertain the meaning of cl 54.04-6 by applying s 32 of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic).  Clause 54.04-6 provided for screens and other discretionary mitigation measures for balconies with direct views into existing secluded private open space and habitable room windows within 9 metres.  The Deputy President held that cl 54.04-6 was unambiguous. 

The second step was to consider whether cl 54.04-6 breached a human right protected by the Charter.  The Deputy President found that cl 54.04-6 did not permit an unlawful or arbitrary interference with Mr Davey’s right to privacy under s 13 of the Charter.  Rather, it created an ambit of regulatory discretion within which some interference with the right to privacy was allowed.  Deputy President Dwyer held that the discretion was not arbitrary, but was to be considered against appropriate guidelines that were responsive to the circumstances of a particular site and a particular planning decision.

The Deputy President also considered whether cl 54.04-6 infringed the property rights of Mr Stooke or Mr Davey, in contravention of s 20 of the Charter.  It was held that any imposition of reasonable restrictions on the use and development of their land was clearly in accordance with the law, and therefore not in breach of s 20.

Given that neither ss 13 or 20 of the Charter were infringed, the Deputy President stated that it was unnecessary to consider the third step of the process outlined in Momcilovic; that is, whether the limit imposed on the rights was justified under s 7(2) of the Charter.  Nonetheless, the Deputy President held that if those rights were breached, the limits imposed by cl 54.04-6 were justified, as consideration of any overlooking, and the implementation of mitigation measures, allowed for a proportionate and reasonable response.

The Deputy President then considered the application of s 38 of the Charter.  The issue was whether the Council or VCAT, in approving the proposed balcony without a screen, would act in a way that was incompatible with s 13, or, in making the decision, would fail to give proper consideration to the right to privacy. 

A similar three-step process applied to the resolution of this issue.  Deputy President Dwyer held that the scope of the right to privacy was limited, as s 13 only disallows unlawful or arbitrary interference with that right.  Such interference did not occur in this case.  The possible overlooking of Mr Davey’s property was found not to be unlawful.  There was no evidence of any intended nuisance.  Nor would any potential interference have been arbitrary.  A decision to delete or modify the planning permit condition was only permitted after the reasonable exercise of a regulatory discretion, based upon the particular circumstances of the particular site, and to which Mr Davey had third party rights of objection.  Accordingly, the Deputy President held that an unscreened balcony and some overlooking of Mr Davey’s property were unlikely to establish a breach of s 38 of the Charter in the main proceedings.  Again, it was unnecessary to consider the third step, but the Deputy President held in any case that any limitation upon Mr Davey’s right to privacy under s 13 was reasonable and proportionate.

The matter was referred back to Member Sibonis for final decision, having regard to the decision made by the Deputy President on the question of law.

Consideration of the Victorian Charter

Deputy President Dwyer made two noteworthy comments about the application of the Charter more generally.  The Deputy President stated that consideration of the Charter in circumstances of potential interference with a person’s privacy or home is ‘not something manifestly different to what is already required to be considered by a Tribunal member making a planning-based decision.’ 

The Deputy President also commented that despite each case turning on its own facts, it would be a ‘rare and exceptional case’ where a planning scheme provision was not compatible with the Charter, or where a planning discretion was not properly exercised within the limitations of the planning regulatory framework.  This is a result of the qualifications on the right to privacy in s 13 of the Charter, the general limitations clause in s 7(2) of the Charter, and the structure of the planning regulatory framework and planning schemes in Victoria.

The decision is at www.austlii.edu.au/au/cases/vic/VCAT/2010/668.html. 

Brad Barr is a Law Graduate with Allens Arthur Robinson

Application of Charter to Guardianship and Administration

PJB (Guardianship) [2010] VCAT 643 (17 May 2010)

Justice Billings in the Victorian Civil and Administrative Tribunal has held that the appointment of an administrator to the estate of a represented person, PJB, was a justifiable restriction on PJB’s right to freedom of movement and right to privacy.

Facts

This was a rehearing of an application for an administration order under the Guardianship and Administration Act 1986 to appoint State Trustees Limited as administrator to make decisions regarding PJB’s financial affairs, particularly relating to his home.

PJB had a 20 year history of mental illness, including over 100 hospital admissions and had been diagnosed with a delusional disorder.  He disputed that he had a mental illness and was resistant to medical treatment.  He had a history of discontinuing medication upon discharge from hospital, which resulted in the need for readmission.

PJB had lived alone in a home owned by the Office of Housing and had been making payments to acquire this home.

Significant emphasis was placed on PJB’s mental health, and likelihood of successful treatment outside of supported accommodation.  PJB intended to return to living alone in his home, whereas the applicant submitted that he was not able to do so as his mental illness and resistance to medication resulted in him not being able to adequately manage his affairs, including his financial affairs.  Accordingly, the applicant considered it appropriate for an administrator to be appointed to PJB’s estate to sell his home in order to fund the supported accommodation which it was submitted he required.  It was agreed that it would not be possible for PJB to afford to keep his home and pay for the supported accommodation it was submitted that he required.

The applicant tendered numerous medical reports supporting the need for an administration order.  Relevantly, the applicant tendered a psychologist report provided in December 2009 stating that PJB’s mental state impacted on his ability to make informed choices about his physical and mental health.

The applicant suggested that PJB responded well to treatment during his admissions in hospital, but he was likely to discontinue this necessary medication once discharged, based on previous actions.

The applicant submitted that PJB had disregard for his obligations regarding necessary bills and general health and living requirements.  Whilst it was agreed that PJB had demonstrated that he could understand and manage aspects of his finances, it was submitted that he could not manage ‘the complexity of living on his own’, including managing his house, debts and food on a daily basis and living within a budget.

The applicant agreed that PJB functioned ‘extremely well’ in hospital and that in principle he could receive his medication at home under a Community Treatment Order, but his history of admissions resulting from not taking his medication indicated that this was not appropriate in the circumstances. 

It was submitted by the applicant that whilst the current application did not relate to PJB’s mental health treatment as such, certain aspects of his mental and physical illness impacted on his ability to make informed decisions regarding his financial affairs, which resulted in the need for an administration order. 

The respondent also submitted a psychiatrist report.  However, when questioned, the psychiatrist revised his opinion such that he did not consider PJB to have the capacity to make rational decisions.  He stated that he could not tell whether PJB would be able to make reasonable decisions regarding his property if compliance with his medication could be ensured through the provisions of the Mental Health Act 1986.

Decision

The Tribunal found that an administration order was appropriate in the circumstances and appointed State Trustees Limited as the administrator of PJB’s estate.  It was held that decisions about PJB’s home could not be separated from decisions about where it was in his best interests to live.

The Tribunal indicated that any decisions by an administrator about PJB’s home would need to follow careful analysis, in accordance with the principles in the Guardianship and Administration Act 1986, however ‘the issues surrounding that decision suggest a strong possibility that an administrator would decide to sell PJB’s home’.  Therefore, an administration order in the circumstances ‘may have the ultimate result of severing of PJB’s very strong connection with his home’.

The Tribunal agreed that the sale of PJB’s home may be irreversible and extreme, but was appropriate given less restrictive options had failed previously and were likely to fail again. 

Consideration of the Victorian Charter

The respondent submitted that an administration order involved a limitation on PJB’s right to freedom of movement under s 12 of the Charter of Human Rights and Responsibilities Act and his right to privacy under s 13.

Relevantly, s 12 of the Charter states that ‘every person lawfully within Victoria has the right … to choose where to live’.  Section 13 of the Charter provides that a person has the right ‘not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’.

The respondent argued that the administration order, in the circumstances, involved a limitation on the freedom of PJB to choose where to live and also on his privacy, as this involved the management of his finances through the sale of his home.

The respondent also referred to the decisions in Kracke v Mental Health Review Board & Ors (General) and AC (Guardianship).  In addition the respondent referred to art 19 of the Convention on the Rights of Persons with Disabilities, which recognises the equal right of all persons with disabilities to live in the community with equal choices to others, including the opportunity to choose their place of residence.

The respondent submitted that the application for an administration order was disproportionate to the aims that were trying to be achieved, being to maintain mental and physical health, and this could be achieved in a less restrictive way.  Further, it was submitted that the sale of PJB’s home was an unworkable limitation on his rights as this was irreversible and extreme.

The Tribunal noted that both Kracke and AC (Guardianship) need to be reconsidered in light of R v Momcilovic.

It held that generally administration orders alone would not involve a restriction on the right to freedom of movement and right to privacy, although they may involve restrictions on a person’s ‘freedom of decision and action’.  The Tribunal stated that this was so despite the fact that ‘in practice restricted control of a person’s funds may mean restricted choice about the person’s accommodation’.

However, as the current administration order was ultimately directed at decisions regarding PJB’s home, the Tribunal found that the administration order would involve a limitation on PJB’s right to freedom of movement and right to privacy. 

The Tribunal then considered whether this infringement on PJB’s rights was justified under s 7(2) of the Charter.  In doing so, the Tribunal stated that ‘the question of proportionality is at the heart of the enquiry mandated by s 7(2) of the Charter’, referring to the decision in Momcilovic and also the Canadian case of R v Oakes.

The Tribunal found that the measures were designed to protect PJB and others who were placed at risk due to his behaviour.  Accordingly, it was held that those measures were rationally connected to, and proportional to, the objective.  Therefore, the measures were justifiable under s 7(2) of the Charter.

The Tribunal also found that the administration order did not offend the principles of the CRPD read as a whole.

The decision is at www.austlii.edu.au/au/cases/vic/VCAT/2010/643.html.  

Mandy Lister is a volunteer lawyer with the Human Rights Law Resource Centre

What does Proper Consideration of Human Rights Entail?

Director of Housing v Turcan [2010] VCAT Ref No R201011922 (Unpublished, 4 May 2010)

The Victorian Civil and Administrative Tribunal has considered the meaning of ‘arbitrary’ and ‘unlawful’ in the context of s 13(a) of the Charter of Human Rights and Responsibilities Act 2006, as well as the relevance of a public authority’s policy to an assessment of proportionality under s 7(2).  Additionally, the Tribunal has held that in determining an application for possession in its Residential Tenancies List, the decision of Bell J in Director of Housing v Sudi [2010] VCAT 328 should be followed to the extent that it is relevant.

Facts

In this proceeding the Director of Housing made an application to the Tribunal for possession on the basis that the tenant had been trafficking drugs from the premises.  The Director relied on s 250 of the Residential Tenancies Act 1997 (Vic) which enables a landlord to apply for possession of premises where a tenant has used rented premises for an illegal purpose.

This decision raised issues recently considered by Bell J in Sudi where it was held the Tribunal had jurisdiction to consider whether a public authority landlord had acted consistently with the Charter in making a possession application.  The Director sought to distinguish Sudi on the basis that the Tribunal was not bound by the doctrine of precedent and also argued that s 39 of the Charter prevented such an approach.

In relation to the substantive matter, the Director led evidence in relation to its policy which prescribed steps to be taken before any decision to evict a tenant for illegal use under s 250 of the Act.  The policy notes a tenant should be provided with an opportunity to respond to allegations of illegal use and states:

• ‘The Director acts in accordance with the provisions of the Residential Tenancies Act and its obligations as a public landlord including obligations under the Victorian Charter…’
• ‘The human rights of the tenant, neighbouring residents and other potentially affected by the illegal use of the premises are also considered.’
• ‘If after consideration of all the information, the Director decides to issue a Notice to Vacate under section 250, that action will be compatible both with the human rights of the tenant and neighbouring residents.’

The tenant contended that the Director had unlawfully limited his right to a home under s 13(a) of the Charter and that Sudi should be followed, not only because it is a decision made by a Justice of the Supreme Court, but because to do so would be in the interests of ensuring that the Tribunal’s decision-making is consistent.

Decision

In relation to the jurisdictional question, the Tribunal held that Sudi should be followed to the extent that it is relevant, and that it is relevant to the extent that it enables consideration to be given to Charter compliance as a preliminary matter in applications made by a public authority.

In Sudi, however, the Director declined to lead evidence as to the steps that were taken prior to the decision to limit the respondent’s rights being made.  This meant the Tribunal in that matter did not need to consider whether the limitation was ‘arbitrary’ or ‘unlawful’ so as to satisfy the internal qualifications of s 13(a).  The Director in Turcan did choose to lead such evidence, and it consequently fell to the Tribunal to address the internal qualification before it could consider the relevance of the Director’s internal policy to an assessment of proportionality under s 7(2).

The Tribunal held ‘a decision is necessarily arbitrary unless there is a review mechanism.’  In this respect, the decision to evict the tenant was not ‘arbitrary’ because the process leading up to service of the notice included a letter detailing the allegations and inviting the tenant to respond.

Considering the factors listed in s 7(2), the Tribunal remarked: ‘the nature of Mr Turcan’s rights are of the highest importance and the Director must take them into account.’  Accordingly, the Tribunal considered the onus to be on the Director in establishing that the limitation of a right is demonstrably justified and, consistent with Sudi, held the standard of proof requires ‘a degree of probability that is commensurate with the occasion’.

In considering the evidence, the Tribunal accepted testimony of the housing officer in relation to actions taken by the Director prior to the application for possession.  Further as the policy had been referred to and s 250 of the Act had been consulted, the Tribunal drew an inference that the policy had been followed.

As to the relationship between the limitation and its purpose, the Tribunal considered the Director’s obligations under the Housing Act 1983 to provide safe, secure housing and remarked that these obligations ‘far outweigh the consideration of Mr Turcan’s personal rights’.

Maya Narayan, Intern, and Chris Povey, Senior Lawyer, with the Homeless Persons’ Legal Clinic

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Comparative Law Case Notes

What Constitutes a Deprivation of Liberty?

Secretary of State for the Home Department v AP [2010] UKSC 24 (16 June 2010)

A recent decision of the UK Supreme Court has confirmed that certain control order restrictions may constitute a deprivation of liberty sufficient to engage the operation of art 5 of the European Convention on Human Rights. 

Facts

The appellant, AP, is an Ethiopian national residing in the UK.  AP was suspected of involvement in terrorism.  On 10 January 2008, the Secretary of State obtained a control order against AP which was subsequently modified on 21 April 2008.  The modified control order subjected AP to a 16 hour curfew and required him to live at an address in the Midlands, some 150 miles from his family in London.

AP appealed against the imposition of the control order and, on 12 August 2008, Keith J quashed the obligation to live in the Midlands.  Keith J considered that the interference with art 8 of the ECHR (the right to respect for private and family life) was justified and proportionate in the interests of national security.  However, his Honour considered that the terms of the control order constituted an art 5 deprivation of liberty.

In making his finding, Keith J considered that the obligation to live in the Midlands away from family and friends had the effect of subjecting AP to an ‘internal exile’ which, when coupled with the 16 hour curfew, took the control order outside the realm of a mere restriction on movement and instead amounted to a deprivation of liberty.  Keith J found that it was extremely difficult for AP’s family to visit him in the Midlands, that he could not integrate socially and spiritually at the local mosque, and that he suffered general social isolation in the town.  Importantly, Keith J found that, but for the obligation to live in the Midlands, the control order would not have breached art 5.

A majority of the Court of Appeal overturned Keith J’s decision on 15 July 2009.  AP appealed this decision to the Supreme Court.  The appeal raised the following matters:

• whether conditions which were justifiable restrictions under art 8 could ‘tip the balance’ in relation to art 5, in that there would be no breach of art 5 but for those conditions;
• whether the judge can take into account subjective ‘person specific’ factors (such as the particular difficulties of AP’s family visiting him in the Midlands) when considering whether a control order amounts to a deprivation of liberty; and
• whether Keith J had made inconsistent findings of fact in respect of the art 5 and art 8 claims (as was held by the Court of Appeal).

Decision

The Supreme Court unanimously found in favour of the appellant on all three grounds.

In relation to the first ground of appeal, the Supreme Court noted that it was established law that a restriction relevant to an art 8 claim might be relevant to an art 5 claim even if the restriction does not establish a breach of art 8.  Consequently, it was held that if an art 8 restriction is a relevant consideration to an art 5 claim, ‘by definition it is capable of being a decisive factor’ in an art 5 claim.

As to the second ground of appeal, the Supreme Court found that the Secretary of State’s argument that a decision-maker should only look to objective factors in assessing the effect of a control order was entirely without basis.  The Court held that it was necessary to look to both objective and subjective factors in determining the effect that the control order has on the individual’s liberty.  To the extent that subjective factors unreasonably contribute to the individual’s isolation (such as the unreasonable behaviour of an individual or that of his or her family), then the correct analysis is that those factors are to be regarded as causing the relevant restriction on liberty, and not the restrictions of the control order.  However, this was not the case for AP.

As to the third and final ground of appeal, the Supreme Court found that Keith J had not made the inconsistent findings of fact declared by the Court of Appeal.  Accordingly, the Supreme Court set aside the decision of the Court of Appeal and restored the decision at first instance.

Relevance to the Victorian Charter

This case affirms the principle outlined by the majority of the House of Lords in Secretary of State for the Home Department v JJ [2008] 1 AC 385 that an art 5 deprivation of liberty may take ‘a variety of forms other than classic detention in prison and strict arrest’.  Thus, in appropriate circumstances, a control order will be regarded not merely as a restriction on liberty, but rather a deprivation of liberty sufficient to engage art 5.  The approach to deciding this issue in the UK is to consider the length of the curfew and the degree of social isolation occasioned by the control order restrictions.

The case may provide assistance when interpreting the scope of the right to liberty and security of person contained within s 21 of the Victorian Charter.  In particular, the decision may assist in determining whether action taken on the part of the State in respect of an individual constitutes a deprivation of liberty under s 21(3).

The decision is at www.bailii.org/uk/cases/UKSC/2010/24.html. 

Jesse Rudd, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

Torture and the Transfer of Prisoners

Evans, R (on the application of) v Secretary of State for Defence [2010] EWHC 1445 (Admin) (25 June 2010)

Ms Evans, a peace activist, sought to stop the practice of British personnel transferring detainees to the Afghan authorities by arguing the practice exposed such transferees to a real risk of torture or serious misconduct.

The British High Court, while troubled by this case, determined the operation of British monitoring systems (which included regular and full access to the detention facilities and individual transferees) would be sufficient to safeguard against the occurrence of abuse and, while isolated examples of abuse may occur, a consistent pattern of abuse that would expose all British transferees to a real risk of ill-treatment was not reasonably likely. 

Facts

Currently, approximately 9000 British armed forces personnel operate in Afghanistan.  Subject to the law of armed conflict, those British forces are authorised to kill or capture insurgents and this power to capture extends to a power to detain temporarily. 

Concurrently, the Afghan Government is entitled to prosecute those within its jurisdiction who are believed to have committed offences against Afghan law.  This is considered to be an important element of the strategy for securing the rule of law and bringing security to Afghanistan. 

What follows is that, where captured insurgents are believed to have committed offences against Afghan law, there are sound reasons for transferring them into the custody of the Afghan authorities for the purposes of questioning and prosecution.  According to British policy, however, detainees must not be transferred into the custody of Afghan authorities if there is a real risk they will suffer torture or serious mistreatment.

Ms Evans, a peace activist opposed to the presence of UK and US armed forces in Afghanistan, sought to stop the practice of transferring detainees into Afghan custody.  To that end, she argued that transferees in Afghan custody have been, and continue to be, at real risk of torture or serious mistreatment and, as such, the practice of transfer has been, and continues to be, in breach of the policy and unlawful.

Decision

Independent reports considered by the Court painted a picture of widespread and serious ill-treatment of detainees in Afghanistan.  Against that background, the Court concluded it was essential for British personnel to implement an effective set of safeguards for the transfer of detainees into Afghan custody.  This meant complying with international human rights obligations, including ensuring full access to detainees for the purpose of monitoring their conditions. 

When considering the type of access required, the Court said it is necessary to consider a number of aspects: physical access to facilities, the extent to which it is possible to locate detainees at those facilities and the quality of the visits to individual detainees (for example, whether interviews could be conducted in private so that detainees could voice any complaints they had about their treatment).

Following a consideration of the evidence, the Court determined there existed the possibility British transferees would be subjected to torture or serious mistreatment at all facilities.  However, it held that, while isolated examples of abuse may occur, a consistent pattern of abuse that would expose all British transferees to a real risk of ill-treatment was not reasonably likely at NDS Kandahar and NDS Lashkar Gah provided:

• all transfers were made on the express basis British personnel would be given full access to each transferee on a regular basis;
• each transferee was actually visited on a regular basis; and
• British personnel would consider the immediate suspension of transfers if full access was denied at any point without an obviously good reason or a transferee made an allegation of serious mistreatment which could not be reasonably and rapidly dismissed as unfounded.

The British High Court held that transfers to NDS Kabul, on the other hand, where access to detainees was denied, would expose transferees to a real risk of torture or serious mistreatment and as such would be unlawful.

Relevance to the Victorian Charter

The Court found this a ‘troubling and difficult case’ and noted ‘[i]f it were not possible to transfer detainees to Afghan custody, the consequences would be very serious’.  For example, detainees would have to be released after a short time, leaving them free to renew their attacks and cause further death and injury and the opportunity to prosecute them and gain intelligence would be lost.  Nonetheless, the Court was clear that none of these considerations affect the standard to be applied when determining the lawfulness of the transfer of detainees. 

In light of this decision, if the transfer of a detainee raises a real risk of torture or serious mistreatment, the transfer breaches the prohibition against torture and ill-treatment regardless of the consequences of not being able to transfer that detainee.  Therefore, the prohibition against torture and ill-treatment requires Australian authorities to put in place adequate safeguards for assessing the risk of torture and serious mistreatment before detainees are transferred out of their custody. 

The decision is at www.bailii.org/ew/cases/EWHC/Admin/2010/1445.html. 

Susanna Kirpichnikov is a lawyer with Lander & Rogers

Extra-territorial Application of the Human Rights Act

Smith, R (on the application of) v Secretary of State for Defence & Anor [2010] UKSC 29 (30 June 2010)

The Supreme Court of the United Kingdom has held by a 6:3 majority that the Human Rights Act 1998 (UK) has no application to members of the armed forces serving overseas when they are outside military bases.  Therefore, deaths occurring on foreign soil need not be subject to full investigation into the possibility of State failure to protect human life under art 2 of the European Convention on Human Rights.  However, deaths of military personnel on active service overseas which do occur within the jurisdiction of the United Kingdom and which appear to result from State failure should be subject to comprehensive investigation.

Facts

Private Jason Smith of the British Territorial Army was mobilised for service in Iraq in 2003.  After spending eight days in Kuwait to acclimatize, he was stationed at Camp Abu Naji in Iraq and billeted to an un-air-conditioned athletics stadium 12km from the base.  By August 2003, temperatures exceeded 50ºC in the shade.  Private Smith reported sick on 9 August, complaining about the heat, but continued to carry out various duties.  On 13 August he was found collapsed and rushed to the Camp Abu Naji hospital but died shortly after of hyperthermia.

The initial coronial inquest into Private Smith’s death was quashed by the High Court due to procedural errors.  Private Smith’s mother argued that her son died within the legal jurisdiction of the United Kingdom and was therefore entitled to protection under the Human Rights Act and the Convention.  Under art 2 of the Convention (the right to life), a death which may implicate a public authority must be subject to an art 2 standard of investigation.  This requires broader inquiry into whether the death was the result of systemic State failure to implement policies protective of human life.

The Secretary of State for Defence conceded that Private Smith’s death on a British army base invoked the jurisdiction of the United Kingdom, and a new Article 2 inquest into his death would be held accordingly.  However, the case continued in order to obtain judgment on the following:

• Is a soldier on military service abroad protected under the Human Rights Act when outside his or her base?
• If so, must the death of such a soldier be the subject of an art 2 inquest?

At first instance, confirmed by the Court of Appeal, both of these questions were answered in the affirmative.  The Secretary of State for Defence appealed to the Supreme Court.

Decision

The Supreme Court allowed the appeal on the jurisdiction issue, but dismissed the appeal on the inquest issue.

Jurisdiction

The majority (Lords Phillips, Walker, Collins, Hope, Rodger and Brown) held that, for the purposes of the Convention, armed servicemen/women posted abroad are not within the jurisdiction of the United Kingdom and therefore are not protected under the Human Rights Act.  The majority observed that, according to the jurisprudence of the Strasbourg Court, ‘jurisdiction’ under the Convention is essentially territorial, but can arise extra-territorially in exceptional circumstances.  The Respondent argued that extra-territorial jurisdiction could arise on the basis of personal status, as members of the armed forces are under the authority and control of the United Kingdom.  However, the majority rejected this submission.  Lord Phillips reasoned that, as the Convention was drafted shortly after the large-scale deployment of troops in World War II, it was unlikely that State Parties intended it to extend to armed operations on foreign soil.  In any case, whether personal status could trigger jurisdiction under the Convention was a question for the Strasbourg Court.  According to Lord Collins, the case of armed servicemen and women serving abroad did not fall within one of the exceptions to territorial jurisdiction recognized by the Strasbourg Court, and there were no policy grounds to justify extending those exceptions in the way the Respondent proposed.  To do so would involve courts in the ultimately non-justiciable issue of how armed conflict is conducted abroad.

The minority (Lady Hale, Lords Mance and Kerr) accepted that jurisdiction under the Convention could be triggered by personal status.  Their Lordships reasoned that the United Kingdom exercises authority and control over British military personnel.  Members of the armed forces reciprocate that authority with allegiance and obedience on the basis that they will receive the support and protection of the country they serve.  Although the United Kingdom could not protect human life in Iraq to the same extent that it did domestically, it should, to the extent possible, put in place facilities to protect against risks to the armed forces.

Inquest

The Court held unanimously that art 2 investigations are not automatically required whenever military personnel die abroad.  However, if an ordinary inquest into a death reveals a possible breach of the right to life by the State, an art 2 investigation is required.  This was the case with respect to Private Smith’s death.

Relevance to the Victorian Charter

This case advocates a narrow understanding of ‘jurisdiction’ for the purposes of human rights legislation.  If matter arises which involves Victorian public authorities acting inter-state or internationally, similar arguments about extra-territorial application may arise.

The decision also underscores the importance of comprehensive investigation into deaths which may involve State failure to protect the right to life under s 9 of the Charter.  This includes the conduct of coronial inquests generally, as well as investigations into deaths associated with police contact.  Presently, no independent body exists to carry out investigations into such deaths in a way which would comply with the Government’s obligations under the Charter.

The decision is at www.bailii.org/uk/cases/UKSC/2010/29.html.

Sarah Lenthall is a volunteer with the Human Rights Law Resource Centre

Do the Rights to Marriage and Equality Require States to Recognise Same-Sex Marriage?

Schalk and Kopf v Austria [2010] 30141/04 (24 June 2010)

Does the right to marry, and the ‘family unit’, extend to same-sex couples?  The European Court of Human Rights recent decision in Schalk and Kopf v Austria considers these issues.

Facts

Under Austrian domestic law, a marriage concluded by a same-sex couple is null and void.  In 2002, Schalk and Kopf, a same-sex couple, applied to the Vienna Municipal Office to marry, but their request was refused.  They ultimately applied to the European Court of Human Rights to challenge the decision, founding their application arts 12 and 14 of the European Convention of Human Rights.

Decision

Violation of the right to marry

Article 12 of the Convention guarantees the right to marry and to found a family to ‘[m]en and women of marriageable age … according to the national laws governing the exercise of this right’.  Relying on the Court’s case-law, which established that the Convention was a ‘living instrument which is to be interpreted in present-day conditions’, the applicants argued that the right should be read as one that applied to same-sex couples.

The Court disagreed, holding that the Convention did not impose an obligation to allow same-sex couples to marry.  While the right enshrined in art 12 was not confined to opposite-sex couples, the issue of whether to allow same-sex couples to marry was reserved for regulation by contracting states. 

Noting that contracting states were ‘best placed to assess and respond to the needs of society’, the Court emphasised its reluctance to substitute its own judgment in the place of contracting states.  While the institution of marriage had undergone ‘major social changes’ since the Convention was adopted, it had ‘deep-rooted social and cultural connotations’ that differ largely between societies.  With only six of the forty-seven contracting states allowing same-sex marriage, the Court thought there was ‘no European consensus’ on the issue. 

Violation of the right to respect for private and family right on the basis of sexual orientation

The Convention also guarantees:

• the right to respect for private and family life under art 8, a right that may only be limited ‘in accordance with the law and [as] necessary in a democratic society’ for certain purposes; and
• the enjoyment of the rights and freedoms secured by the Convention without discrimination under art 14.

Relying on art 14 (taken in conjunction with art 8), the applicants alleged that, by being denied access to marriage, they had been unlawfully discriminated against on based on their sexual orientation. 

Importantly, the Court’s decision recognises for the first time that the notion of ‘family life’ under art 8 extends to same-sex partners living in a de facto relationship, ‘just as the relationship of a different-sex couple in the same situation would’.

However, the Court concluded that there was no obligation to grant access to marriage to same-sex couples based on art 14.  Because the Convention must be read as a whole, and its articles construed in harmony with one another, given the conclusion that art 12 did not impose an obligation to grant access to marriage to same sex-couples, it could not be implied from art 14 (taken in conjunction with art 8).

The applicants also alleged that they had been discriminated against on the basis of their sexual orientation because (at the time of the appeal was filed in 2002) they did not have any other right to legal recognition of their relationship.

Subsequent changes in Austrian domestic law changed the complexion of the applicants’ claim.  After their application was lodged, but before it was heard, the Austrian Registered Partnerships Act came into force.  It granted same-sex couples the right to enter into ‘registered partnerships’, and implemented a range of reforms to provide registered partners with many (but not all) of the same legal rights as married couples.  The differences noted by the Court included that:

• registered partnerships were concluded in different offices to marriages;
• registered partners could take on a common ‘last name’, whereas married couples had a common ‘family name’; and
• registered partners could not adopt children, nor access artificial insemination.

While the Court acknowledged that there was an ‘emerging European consensus towards legal recognition of same-sex couples’, it was an area to be regarded ‘as one of evolving rights with no established consensus’.  Accordingly, contracting parties enjoy a margin of appreciation in the timing of the introduction of legislative changes, and the Austrian Government could not be reproached.

Despite noting that the ‘differences based on sexual orientation require particularly serious reasons by way of justification’, the Court held the contracting parties enjoyed a margin of appreciation under art 14 about the content of recognition granted to same-sex couples.  The Austrian Government had not exceeded the margin in its choice of rights and obligations conferred by registered partnership.  The differences in parental rights ‘correspond[ed] … to the trend in other member States’ and, in any event, because the applicants had not claimed that they were directly affected by the differences, the Court declined to examine them in detail.

Relevance to the Victorian Charter

Like the Convention, the Victorian Charter also affords protections to families, protecting persons from unlawful or arbitrary interference with their family (s 13) and acknowledging that families ‘are the fundamental group unit of society and are entitled to be protected’ (s 17).  At the very least, the decision is likely to be influential in interpreting what constitutes a ‘family’ under the Victorian Charter.

The Victorian Government has in recent times introduced a range of reforms intended to grant to same-sex couples the same legal rights available to other couples under state law (see the Statute Law Amendment (Relationships) Act 2001 and the Statute Law Further Amendment (Relationships) Act 2001) and to allow same-sex partners to register their relationship (see the Relationships Act 2008). 

For now, the more contentious issue of access to marriage by same-sex couples cannot be resolved at the state (or territory) level in Australia.  With the Howard Government’s 2004 amendments to the Marriage Act 1961 reserving marriage to ‘a man and a woman to the exclusion of all others’, s 109 of the Constitution (which renders invalid any state law that is inconsistent with a Commonwealth law) looms large.  The issue presents another example of the constraints of state and territory-based human rights protections in the Australian federal compact.

The decision is at http://www.bailii.org/eu/cases/ECHR/2010/995.html. 

Samuel Porter, Solicitor, Mallesons Stephen Jaques Human Rights Law Group

Right to Life Includes Right to Health and Freedom from Poverty

Laxmi Mandal v Deen Dayal Harinagar Hospital & Ors [2010] 8853/2008 and Jaitun v Janpura Maternity Home & Ors [2010] 10700/2009 (High Court of Delhi, 4 June 2010)

The High Court of Delhi has issued directions in response to the systemic failures resulting in the denial of benefits to two mothers below the poverty line (BPL) during their pregnancy and immediately after, in violation of the right to life contained in art 21 of the Constitution of India and international human rights obligations incorporated by the Protection of Human Rights Act 1993.

Under the Constitution, the right to life is comprised of two inalienable survival rights: the right to health (which includes the right to access and receive a minimum standard of treatment and care in public health facilities, and in particular, the reproductive rights of the mother); and the right to food.

Facts

The High Court determined two petitions simultaneously concerning deficiencies in the implementation of a cluster of Government funded schemes aimed at reducing infant and maternal mortality, resulting in the denial of benefits to two mothers below the poverty line during their pregnancy and immediately thereafter.

Shanti Devi and her daughter Archana

Shanti Devi was a mother of two children (of four pregnancies).  She was of poor health and suffered from anaemia and tuberculosis.

Seven months into her fifth pregnancy, Shanti Devi had severe oedema, anaemia and fever, and had also fallen on the stairs of a building resulting in a fractured humerus and multiple fractured ribs.  She saw a midwife and was referred to Faridabad Hospital.  Due to insufficient finances, Shanti Devi was unable to attend the hospital for two weeks.

The hospital advised that Shanti Devi had miscarried the child and referred her to Sanjay Gandhi Hospital.  Sanjay Gandhi Hospital then on referred Shanti Devi to Saroj Hospital due to insufficient facilities for the removal of the foetus.  Despite providing the relevant BPL documentation on arrival, Saroj Hospital refused treatment on the ground that Shanti Devi was not below the poverty line (BPL patients in urgent need of medical attention can obtain treatment at no cost).

Shanti Devi was then taken back to Sanjay Gandhi Hospital which then referred her to Deen Dayal Hospital, where she was diagnosed with lack of platelets derangement due to a lack of protein during pregnancy and the foetus was removed.

One year later Shanti Devi became pregnant for the sixth time and died giving birth to a pre-mature baby at home without the presence of a skilled birth attendant.  A maternal audit of the death of Shanti Devi was conducted and the report concluded that the primary cause of Shanti Devi’s death was postpartum haemorrhage due to retained placenta.

Additional indirect and contributing factors to her death were broadly described as:

• ·          socio-economic status which denied access to needed resources and services; and
• ·          poor health condition which was a culmination of anaemia, tuberculosis and repeated, unsafe pregnancies.

Fatema and Alisha

Fatema is poor, homeless, uneducated, suffering from epilepsy and living under a tree in Jangpura, New Delhi.  Twice during her pregnancy, Fatema visited a Maternity Home for vaccinations and to inquire about the cash benefits that she could avail upon delivery.  Fatema received no response or assistance from the authorities.

Fatema delivered her daughter, Alisha, under a tree in full public view without access to skilled health care and medical guidance.  The Maternity Home was informed of the delivery the same day, however no visit was made to Fatima by the staff of the Hospital.  Five days after the birth, Fatema brought Alisha to the Maternity Home for her vaccination.

The child was not examined and Fatema was not given any advice or medicines.  Fatema was advised that she was anaemic, although this was in the absence of any blood test.  Fatema was administered medicines and issued a discharge slip so that she could get a birth certificate for Alisha and cash assistance under a particular Government scheme.

Fatema was refused payment by the Maternity Home on numerous occasions.  On the intervention of a social activist, Fatema was able to get Rs. 550 from the Maternity Hospital.  Fatema and Alisha’s health continued to deteriorate and they did not receive any nutrition or health care under the relevant schemes.

Decision

Indian Supreme Court jurisprudence has aimed to protect and enforce the right to health and the right to food consistently with international human rights law.  In particular, international human rights conventions have been incorporated in Indian domestic law through the Protection of Human Rights Act 1993.

The Supreme Court has also set down the content of the right to health and food and, consistent with international human rights law, the obligations of conduct and result.  These rights are enforceable through a continuing mandamus by the Supreme Court which the High Court is obliged to carry out to ensure the implementation of those orders.

In response to the two petitions, the Government of India stated that the responsibility for implementation of the schemes was essentially with the State governments and that the relevant State Governments were replying on the status of implementation of the order of the Supreme Court.

In commenting on the current status of the health schemes, the High Court reinforced the notion that there cannot be a situation where a pregnant woman who is in need of care and assistance is turned away from a Government health facility only on the ground that she has not been able to demonstrate her BPL status or her ‘eligibility’.  In addition, it noted that the approach of the government, both Central and State, in operationalising the schemes should be to ensure that as many people as possible are covered by the scheme and are not denied the benefits.  The onerous burden on persons BPL to prove that they are persons in need of urgent medical assistance constitutes a major barrier to their access to the services.

The Court observed that these two instances were not brought to the notice of the central government and there was also no inbuilt mechanism for corrective action, restitution and compensation in the event of the failure of any beneficiary to gain access to the services under the schemes.

In neither of the cases of Fatema or Shanti Devi were the substantive benefits under particular schemes made available and a significant feature of both cases is that both women delivered their babies outside of the institution. The schemes envisage that even for home deliveries, assistance has to be provided to the pregnant women.

During her life time Shanti Devi did not get the benefit offered under the relevant schemes which constituted a major failure which aggravated the causes that ultimately led to her avoidable death.

The shortcomings identified by the Court in the working of the schemes were as follows:

1. Lack of ‘portability’ of the schemes across states – persons declared BPL in any state of the country should be assured the continued availability of such access to public health care services throughout the country.
2. Interaction of cash assistance under the schemes – benefits should be made available irrespective of the number of live births or the age of the mother to ensure pregnant women across the country are not denied cash assistance.
3. Overlap of the schemes – there must be an identified place for women to approach to be given the benefits under various schemes.
4. Administration of nutritional and health scheme overhaul (deplorable condition) – the presence of health facilities should be clearly labelled and identified and be fitted with the necessary equipment to carry out the tests.  In the rural set up, monthly camps should be held at an identified place where pregnant women and young children can undergo health check-ups.
5. Referral system to be improved – the system should ensure safe and prompt transportation of pregnant women from their paces of residence to public health institutions or private hospitals and vice-versa.  Existing ambulance and transport services require augmenting and improving significantly.

Other directions were also issued to ensure that the benefits under the various schemes are not denied to the beneficiaries and that assistance is provided promptly at the nearest point where it can be accessed; for example, the imposition of registers and reporting systems as well as constant review and monitoring of the implementation of the schemes.

Relevance to the Victorian Charter

This case sheds light on the potential scope of the right to life contained in s 9 of the Victorian Charter with respect to reproductive rights and the right to health and nutrition during and following pregnancy.

In addition, this decision is relevant to the interpretation of the right to protection of families and children in the context of ss 17 and 8 of the Victorian Charter, in particular, the right of the child to be protected by society and the State, without discrimination.

The decision is at www.escr-net.org/usr_doc/Laxmi_Mandal_Court_Decision.pdf. 

Kate Moore is a volunteer lawyer with the Human Rights Law Resource Centre

Balancing the Right to Freedom of Expression and the Right to a Fair Trial

Toronto Star Newspapers Ltd v Canada, 2010 SCC 21 (10 June 2010)

Legislation providing for mandatory publication bans on bail application hearings was upheld by the Supreme Court of Canada as a reasonable compromise between protecting the accused person’s right to a fair trial and the right to freedom of expression.

Facts

The Canadian Criminal Code provides that an accused person is entitled automatically to an order preventing publication of information produced at bail hearing, if he or she makes such a request.  Such orders may prevent publication of this information until the end of the hearing or until the prosecution is dropped.

In Canada, the evidence which can be presented at bail hearings is not tested for relevance or admissibility, and it often goes to the reputation of the accused.  It is usually different to the evidence presented at trial and often not related to the offence being tried.  Additionally, the media can publish the identity of the accused, comment on the charge and the alleged facts, and report the outcome of the bail application.

Parliament’s objective in making the relevant law was to ensure expeditious bail hearings and to protect the right to a fair trial.  Trial fairness is engaged because the accused might be prejudiced by the publication of information provided at the bail hearing which was not relevant or admissible in the main trial. The ban prevents the dissemination of evidence which, for the sake of ensuring an expeditious hearing, is untested for relevance or admissibility.

However, there is no question that the orders limit freedom of expression by preventing publication of information which may be of interest to the public and which would facilitate understanding and scrutiny of the criminal justice system.

This appeal concerned two cases: a murder prosecution from Alberta and an alleged terrorism-related offence from Ontario.  Both of these cases attracted significant media attention and a number of media outlets challenged the bans, arguing they were a violation of the right to freedom of expression in the Canadian Charter of Rights and Freedoms.

Decision

To establish the objective behind the bail system, the majority judgment of the Canadian Supreme Court engages in a discussion of the history of bail and cites studies into the relationship between pre-trial incarceration and conviction at trial.

The majority concluded that the availability of the ban ‘is integral to a series of measures designed to foster trial fairness and ensure an expeditious bail hearing’.

Proportionality test

The majority conducted an analysis based on the Oakes test (broadly equivalent to s 7 of the Victorian Charter).  For an infringement of a human right to be allowed, the test requires a pressing and substantial objective, a rational connection with the infringement, and a demonstration that the chosen means interfere as little as possible with the right infringed and that the benefits outweigh its deleterious effects.

The deleterious effects of the bans identified by the majority were that they impair the freedom of individuals to discuss information about the institutions of government, and prevent full access and scrutiny of the criminal justice process, especially when the bail hearing attracts media attention and the outcome cannot readily be understood by the public.

However, these effects were outweighed by ‘the need to ensure certainty and timeliness, to conserve resources, and to avert the disclosure of untested prejudicial information’. The court also pointed out the limited value to the public of the information subject to the ban, which is untested, one-sided, stigmatising, and often irrelevant to guilt.

Proposed alternative: a hearing to decide a discretionary publication ban

Arguments were raised concerning the possibility of an alternative which would involve a lesser infringement of the right to freedom of expression, such as allowing for a separate publication ban hearing.  The court found this would be a waste of resources and a burden on the accused.  Accused persons might decide not to apply for bail because of the risk that information would not be protected, or if they did apply for bail they would be under additional pressure at the time of the bail hearing, a period in which they are vulnerable and typically have limited resources to prepare for hearings.

The majority said that accused persons should be able to ‘focus their energy and resources on their liberty interests rather than on their privacy interests’.  The automatic nature of the ban ‘ensures that they will not renounce their right to liberty in order to protect their reputations’.

The Court also identified a number of mitigating factors about the ban: namely that it does not prevent publication of the identity of the accused, the facts, the offence, the outcome of the application, or any legal conditions attached.  The ban is also temporary.  Although the information may no longer be newsworthy by the time it can be published, this cannot be said to limit freedom of expression more than is necessary.

There was also discussion of changing the scope of the ban or making it discretionary only with respect to the judge’s reasons.  The majority thought these suggestions would also fail to serve the objectives of the ban.

Therefore, there was no alternative measure available to parliament which would have achieved the objectives with a lesser effect on freedom of expression.  The majority concluded that the mandatory ban represented a reasonable compromise.

Dissent: Abella J

Abella J thought the appropriate remedy was to allow for a discretionary ban, to be decided at the bail hearing. 

Her Honour’s judgment emphasised the importance of the public being able to ‘see the judicial process at work’ and found that the claimed benefits of the automatic ban do not outweigh the infringement of the ‘open court principle’.

The concerns about pre-trial publicity and delay were speculative, they were not serious infringements of the right to a fair trial, and they could be remedied in other ways.  Rather than referring to the effects of publicity generally, Abella J focussed on the argument that a properly instructed jury should be able to disregard irrelevant evidence.

Relevance to the Victorian Charter

The most significant aspect of this judgment is its broad interpretation and discussion of the right of accused persons to a fair trial, and its analysis of the way pre-trial procedures including bail applications have a significant impact on this.

The decision has parallels with several sections of the Victorian Charter of Human Rights and Responsibilities. 

In relation to the right to liberty and security of person, s 21(6) refers to the right of accused persons not to be detained automatically in custody, but does not refer to privacy or information rights.  As part of the right to a fair hearing in s 24, a court is empowered to exclude media organisations from a hearing if permitted to do so by law.  This recognises that privacy may in some circumstances be necessary to facilitate a fair trial.  However, s 24(3) of the Charter provides that all judgments or decisions must be made public unless the best interests of a child otherwise require – this would presumably be inconsistent with a measure as expansive as the Canadian publication bans.

The decision is also an example of a limitation of the right to freedom of expression (s 15 of the Charter).  It is recognised that this right sometimes needs to be limited, in particular to respect the rights and reputation of other persons (s 15(3)), and there are already various Victorian decisions upholding limitations to the right.

The decision is at http://scc.lexum.umontreal.ca/en/2010/2010scc21/2010scc21.html.

Alex Bowen, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

Access to Information and Freedom of Expression

Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23 (17 June 2010)

The Supreme Court of Canada held that the right to freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms does not guarantee access to all documents held in government hands.  Access to documents is a derivative right of the freedom, where the denial of that access would preclude meaningful public discussion on matters of public interest.  Access may validly be denied on the basis of countervailing considerations.  In this case, those considerations were client-solicitor and law enforcement privilege.

Facts

Two men, Graham Court and Peter Monaghan (the accused), were convicted of murder.  New trials were ordered for the accused on the basis of fresh evidence, the loss of which had not been disclosed by the police to the defence until two and a half years after the trial, and inadequate jury instructions. 

During the re-trial, the accused applied for a stay of proceedings on the grounds of a breach of their Charter rights.  The trial judge (Glithero J) found ‘many instances of abusive conduct by state officials’ and granted a stay.

The Ontario Provincial Police (OPP) then investigated the conduct of the police involved and exonerated them of any misdoing.  The OPP offered no explanation for its conclusions.  The Criminal Lawyers’ Association, sought the disclosure of documents relating to the investigation under Ontario’s Freedom of Information and Protection of Privacy Act 1990.  The documents at the heart of the matter were an OPP report detailing the results of the investigation, and two pieces of correspondence containing legal advice on the OPP investigation and report.

The FOI Act provides that the relevant Minister may, by exercise of discretion, exempt certain categories of documents from disclosure, including:

• law enforcement records (s 14); and
• client-solicitor privilege (s 19).

Section 23 of the FOI Act provides that certain exemptions would not apply where a ‘compelling public interest’ in disclosure clearly outweighed the purpose of the exemption (the ‘public interest override’).  The public interest override does not, however, apply to ss 14 and 19. 

The Minister refused to disclose the report or the legal advice on the basis of the exemptions, but gave no reasons for that decision.  The Association appealed the Minister’s decision to the Assistant Information and Privacy Commissioner, who upheld the Minister’s decision.  The Commissioner found that, while the public interest clearly outweighed the purpose of the exemption in this case, the public interest override did not apply to the ss 14 and 19 exemptions.  The Commissioner further found that the omission of ss 14 and 19 from s 23 did not constitute a breach of the freedom of expression under s 2(b) of the Charter.  A single judge of the Ontario Divisional Court upheld the Commissioner’s decision.  However, the Ontario Court of Appeal by majority allowed the Association’s appeal holding that the exclusion of ss 14 and 19 from the public interest override violated s 2(b) of the Charter.

The Minister appealed to the Supreme Court of Canada.

Decision

The Supreme Court unanimously allowed the appeal, holding that:

S 2(b) does not guarantee access to all documents in government hands.  Section 2(b) guarantees freedom of expression, not access to information.  Access is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government.

The Supreme Court considered the relevant question to be to determined was how far s 2(b) protection extended.  In answering that question, the Supreme Court held that the best approach involved addressing the three inquiries in Irwin Toy Ltd v Quebec (Attorney General) [1989] 1 SCR 927:

1. Does the activity in question have expressive content and therefore attract the freedom in s 2(b)? 

The Supreme Court held that, to satisfy this requirement, it must be established that ‘access is necessary to permit meaningful debate and discussion on a matter of public interest’.  In this case, that requirement was not met, as the record supporting the misconduct of state officials was already in the public domain.

2. Is there something in the method or location of that expression that would remove that protection? 

In relation to this question the Supreme Court observed that the Association would need to demonstrate that access to the ss 14 and 19 documents, obtained through the public interest override, would not ‘impinge on privileges or impair the proper functioning of relevant government institutions’.

Again, the Association failed to meet this test.  Sections 14 and 19 were ‘intended to protect documents from disclosure on these very grounds’.

3. If the activity remains protected, does the state action infringe that protection?

In view of its conclusions with respect to the first two questions, the Supreme Court found it unnecessary to answer this question.  In any event, Supreme Court found that the absence of the public interest override with respect to ss 14 and 19 did not significantly impair the Association’s access to documents.  The Minister exercises a discretion in considering whether the ss 14 and 19 exemptions apply.  In exercising that discretion, the Minister is required to have regard to the public interest in disclosure.  The public interest override, the Supreme Court held, would add little to the consideration of the public interest in disclosure already mandated by the FOI Act. 

The Supreme Court did decide to remit the s 14 claim back to the Commissioner.  The Supreme Court noted that, in exercising the discretion under ss 14 and 19, the Minister was required to consider individual parts of the record and to disclose as much of the information as was possible when an exemption was claimed. 

In reviewing the Minister’s decision, the Commissioner was required to consider whether the exemption was properly claimed and, if it was, whether the Minister had properly exercised the Minister’s discretion.  In this case the Commissioner had not considered the exercise of the Minister’s discretion, and should reconsider the s 14 exemption claim.  The Supreme Court held:

The absence of reasons and the failure of the Minister to order disclosure of any part of the voluminous documents sought at the very least raise concerns that should have been investigated by the Commissioner.  We are satisfied that had the Commissioner conducted an appropriate review of the Minister’s decision, he might well have reached a different conclusion as to whether the Minister’s discretion under s. 14 was properly exercised.

The s 19 exemption claim was not ordered to be reconsidered.  The categorical nature of solicitor-client privilege meant, the Supreme Court concluded, that it was ‘difficult to see how these records could have been disclosed’.

Relevance to the Victorian Charter

Section 15 of the Victorian Charter protects the right to freedom of expression.  This freedom expressly includes the freedom to seek, receive and impart information in writing.  In contrast to the decision of the Canadian Supreme Court, in Victoria, this right has been held to ‘incorporate a positive right to obtain access to government-held documents’ (see XYZ v Victoria Police [2010] VCAT 255 (16 March 2010)). 

The decision is at www.canlii.org/en/ca/scc/doc/2010/2010scc23/2010scc23.html.

Tim Goodwin is a lawyer with Allens Arthur Robinson

Freedom of Expression and the Protection of Journalistic Sources: When Can a Journalist be Compelled to Reveal their Source?

R v National Post, 2010 SCC 16 (7 May 2010)

In this case, the Canadian Supreme Court found that the guarantee of freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms (Canadian Charter) does not create a constitutionally entrenched immunity to protect journalists against the compelled disclosure of secret sources.  The Court examined if there was nevertheless a common law privilege ‘to be applied in light of the important public interest in freedom of expression’ and found that this must be assessed on a case-by-case basis.  In this case, the Court considered that the public interest in protection of the secret source did not outweigh the public interest in the production of physical evidence of the alleged crimes.

Facts

M, employed as a journalist by National Post, was investigating whether the then Prime Minister was involved in financial fraud and forgery.  X, a secret source, provided M with relevant information on condition of confidentiality.  X told M that he received a document anonymously in the mail and discarded the original envelope.  M was satisfied that X was a reliable source who did not believe the document to be a forgery.  M faxed copies of the document to the Prime Minister’s office and to a lawyer for the Prime Minister, all of whom responded that the document was a forgery.

National Post subsequently refused requests from the police to obtain the document and envelope, and M declined to identify his source.  The police obtained a search warrant and assistance order and National Post applied to have the court orders set aside.  The reviewing judge did so, but they were reinstated by the Ontario Court of Appeal.  

In the Supreme Court, National Post and M (the appellants) claimed the search warrant and assistance order were incompatible with s 2(b) of the Canadian Charter (which guarantees freedom of expression) or that they were otherwise unreasonable under s 8, which guarantees ‘the right to be secure against unreasonable search and seizure’.

Decision

The Court initially dealt with the appellants’ claim that the guarantee of freedom of expression (s 2(b)) created a constitutionally entrenched immunity to protect journalists against the compelled disclosure of secret sources.  The Court stated that ‘the history of journalism in this country shows that the purpose of s 2(b) can be fulfilled without the necessity of implying a constitutional immunity’ and ‘accordingly, a judicial order to compel disclosure of a secret source would not in general violate s 2(b).’  It acknowledged that the European Court ‘locates journalist privilege in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, but [noted that it is] necessarily so because the Convention is the source of its jurisdiction.’

After concluding that there is no s 2(b) immunity, the Court examined if there is a common law privilege to be applied in light of freedom of expression.  It found that a ‘case-by-case model of privilege’ should be used rather then a ‘class privilege model’.  According to the Court, the assessment is to be made under Professor Wigmore’s criteria for establishing confidentiality in common law (as set out in M (A) v Ryan, [1997] 1 SCR 157, at para 30).  Under this approach, a promise of confidentiality will be respected if the ‘media party’ proves all four of the following criteria:

• that the communication originated in confidence;
• that the confidence is essential to the relationship in which the communication arises;
• that the relationship is one which should be sedulously fostered in the public good; and
• the public interest in protecting the identity of the informant from disclosure outweighs the public interest in getting the truth. 

The analysis under the fourth criterion ‘does most of the work’ according to the Court, and ‘underlying this analysis is the need to achieve proportionality in striking a balance amongst competing interests’.  The weighing up will include ‘the nature and seriousness of the offence under investigation…the probative value of the evidence sought to be obtained, measured against the public interest in respecting the journalist’s promise of confidentiality…[and] the underlying purpose of the investigation.’

The Court held that this criteria provides a ‘workable structure’ which ‘will provide the necessary flexibility and opportunity for growth that is essential to the proper function of the common law.’

The Court noted that it is for the Court to decide when disclosure is required and not for individual journalists, and that that conclusion is not changed by an individual journalist’s belief in the good faith of his source.  Confidentiality may be lost when ‘information [is] put into the public domain maliciously’.  The Court further held that ‘this [case] is not the usual case of journalists seeking to avoid testifying about their secret sources;…[t]his is a physical evidence case and the documents are the very actus reus…of the alleged crime.’  Hence, immunity is situation specific and journalists have ‘no blanket right to suppress physical evidence of a crime’.

The Court then examined whether the court orders were ‘unreasonable’ within the meaning of s 8.  The issuing judge proceeded ex parte but allowed one month between its issuance and execution and, according to the Court, it respected the special position of the media. The Court therefore concluded that the orders were properly issued and not unreasonable under s 8 of the Canadian Charter.

The appeal was dismissed.

Dissenting opinion

Abella J, dissenting, was of the opinion that ‘the harm caused by the public disclosure of the identity of the confidential source…is far weightier then any benefit to the investigation of the crime’ and would hence have allowed the appeal.  Abella J considered ‘the benefit to the forgery investigation of getting the documents …at best marginal’ and that also the fourth Wigmore criteria had been satisfied.  Abella J also considered that when a journalist has taken ‘credible and reasonable steps to determine the authenticity and reliability of his source, one should respect his professional judgment.’

Relevance to the Victorian Charter  

Freedom of expression is protected in Victoria through s 15(2) of the Charter.  This right can be restricted through an internal limit in s 15(3) and also through s 7(2) which provides for the reasonable limitation of rights protected by law.

This case can provide guidance on assessing when the right to freedom of expression can be restricted, particularly when balancing protection of journalistic sources with other public interests such as effective criminal investigation.  The court suggested a case by case assessment of the journalist-confidential source privilege by using the common law ‘Wigmore criteria’.  These criteria establish that the claimant must prove that the public interest in protecting the identity of the secret source from disclosure outweighs the public interest in getting the truth.

The decision is at www.canlii.org/en/ca/scc/doc/2010/2010scc16/2010scc16.html. 

Susanna Hedenmark is a volunteer with the Human Rights Law Resource Centre

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HRLRC Policy Work

HRLRC Coordinates Major NGO Report on Australia to UN Committee on the Elimination of Racial Discrimination

Australia is scheduled to be reviewed by the UN Committee on the Elimination of Racial Discrimination in Geneva in August 2010. 

In July 2010, the Human Rights Law Resource Centre, together with the National Association of Community Legal Centres, submitted a major NGO submission on Australia to the UN Committee on the Elimination of Racial Discrimination. 

The report, which was endorsed by a coalition of over 100 NGOs, details that racial and religious minority groups in Australia continue to experience racism in their daily lives and to suffer unequal human rights treatment and outcomes.  There remain serious concerns about the racially discriminatory character and impact of a range of Australian laws, policies and practices.  Many of the advances in human rights protection since the election of the Labor Government in 2007 have been symbolic in nature; structural changes necessary to turn commitments into practice still need to be made.

The NGO report documents areas in which Australia is falling short of fulfilling its obligations under CERD and focuses on areas that have been the subject of extensive NGO activity and research in Australia.

Subjects detailed in the report include:

• the lack of sufficient legal protection from racial discrimination in Australian law, policy and practice, including the ineffectiveness and, at times, unavailability of remedies for violations;
• the ongoing discriminatory outcomes experienced by Aboriginal and Torres Strait Islander people in the enjoyment of many civil, political, economic, social and cultural rights;
• the impact of the Northern Territory Intervention on Aboriginal and Torres Strait Islander peoples;
• the adverse impact of laws, policies and practices on asylum seekers, refugees and other non-citizens;
• the various forms of discrimination faced by migrant communities in Australia;
• the impact of Australia’s counter-terrorism laws on Somali, Kurd and Muslim communities in Australia; and
• the need for better implementation of Concluding Observations of human rights treaty monitoring bodies and a worrying trend in Australia’s response to views of those bodies.

The report contains concrete recommendations for Australian authorities, which would bring Australia more fully into compliance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination; an Australia in which all persons can live with freedom, respect, equality and dignity.

The report is at: www.hrlrc.org.au/content/topics/equality/cerd-ngo-report-for-review-of-australia-7-july-2010/. 

Emily Howie is Director of Advocacy and Strategic Litigation with the Human Rights Law Resource Centre

Universal Periodic Review: Joint NGO Report on Australia

Australia is to be reviewed by the UN Human Rights Council through the Universal Periodic Review process in January 2011.

A coalition of 68 NGOs – coordinated by the Human Rights Law Resource Centre, Kingsford Legal Centre and the National Association of Community Legal Centres – has submitted a 5 page Report to the UN Human Rights Council on Australia, setting out key human rights issues and concrete recommendations, including in relation to:

• the legal recognition and protection of human rights;
• Australia’s cooperation with international human rights mechanisms;
• equality and non-discrimination;
• women’s rights;
• children’s rights;
• the rights of people with disability;
• GLBTI rights;
• Indigenous rights, including in respect of the Northern Territory Intervention, the criminal justice system, native title, the Stolen Generations, Stolen Wages, and access to adequate health care, housing and education;
• the rights of migrants, refugees and asylum seekers;
• prisoners’ rights and conditions of detention;
• police use of force and oversight and complaint mechanisms;
• the administration of justice;
• homelessness;
• mental health care;
• human rights and counter-terrorism;
• business and human rights; and
• international assistance and Australian foreign policy. 

The report was submitted to the UN Human Rights Council in Geneva on 12 July 2010 and is at www.hrlrc.org.au/content/topics/business/upr-ngo-report-on-australia/. 

Ben Schokman is Director of International Advocacy with the Human Rights Law Resource Centre

Setting the Agenda: Policy Brief on Human Rights in the Asia-Pacific

On 28 June 2010, the Centre published a policy brief on ‘Human Rights in the Asia-Pacific: Australia’s Role and Responsibilities’.

As the Federal Government prepares its response to the report of the Joint Parliamentary Committee on Foreign Affairs, Defence and Trade, ‘Human Rights and the Asia-Pacific: Opportunities and Challenges’, the paper contends that Australia should develop a comprehensive policy on human rights in the Asia-Pacific and makes 21 concrete recommendations for action in the following areas:

• Human Rights as a Key Instrument and Aim of Australian Engagement in the Region
• Adopting a Human Rights-Based Approach to Aid and Development Assistance
• Adopting a Human Rights-Based Approach to Military and Security Cooperation
• Empowering Communities and Supporting NGOs
• Human Rights Treaty Ratification and Implementation
• Strengthening Human Rights Institutions
• Enhancing Parliamentary Engagement with Human Rights
• Human Rights Envoys and Ambassadors

This brief is the fifth in a series of policy papers designed by the Human Rights Law Resource Centre to inform and advance the human rights agenda in Australia.  Each brief identifies a human rights problem or opportunity, discusses the imperative for action, analyses relevant evidence, and makes concrete recommendations for Australia to advance the agenda at the international and national levels.  Previous briefs relate to:

• Promoting Equality and Addressing Discrimination in Australia
• Foreign Policy and Human Rights
• Business and Human Rights
• Protecting Privacy while Responding to Terrorism

The policy briefs are at www.hrlrc.org.au/content/topics/asia-pacific/setting-the-human-rights-agenda/.  

Philip Lynch is Executive Director of the Human Rights Law Resource Centre

HRLRC Provides Update to UN Human Rights Committee on Australia

On 2 April 2009, the UN Human Rights Committee adopted Concluding Observations in respect of Australia’s compliance with its obligations under the International Covenant on Civil and Political Rights.

On 6 July 2010, the Human Rights Law Resource Centre made a Follow-Up Submission on Implementation of the Human Rights Committee’s Concluding Observations on Australia. The submission updates the Committee as to:

• the four Concluding Observations about which the Committee requested relevant information on implementation from Australia within one year (namely, counter-terrorism law and policy, the Northern Territory Emergency Response, violence against women and mandatory immigration detention); and
• the outcomes of the National Human Rights Consultation.

Further background information on each of these issues is contained in the comprehensive NGO Report, Addendum and fact sheets provided to the Committee in 2009, available at www.hrlrc.org.au/content/topics/civil-and-political-rights/un-human-rights-committee-review-of-australia-march-2009/.

Ben Schokman is Director of International Advocacy with the Human Rights Law Resource Centre

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HRLRC Casework

Centre Obtains Landmark Judgment regarding Prisoner Access to Healthcare and Humane Treatment in Detention

In a landmark decision on 9 July 2010, the Supreme Court of Victoria found that the Centre’s client, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment while in prison. 

The judgment affirms the principle – well-established in international human rights jurisprudence – that prisoners should not be subjected to hardship or constraint other than that which necessarily results from the deprivation of liberty.  The judgment also recognises the fundamental importance of prisoners’ access to healthcare and that IVF treatment is a legitimate treatment necessary for the preservation of health. 

This matter was run on a pro bono basis by the Human Rights Law Resource Centre, together with Blake Dawson, Debbie Mortimer SC and Michael Borsky of Counsel. 

Rachel Ball is Director of Policy and Campaigns with the Human Rights Law Resource Centre

Centre Launches Landmark Voting Rights Case in High Court

On 23 July 2010, the HRLRC and GetUp! announced proposed action in the High Court of Australia to promote and protect voting rights for disadvantaged groups.  The case will be heard in the High Court in an urgent hearing on 4 August 2010. 

The case is a constitutional challenge to the validity of changes to the Commonwealth Electoral Act 1918 made by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006.  The Amendment Act results, inter alia, in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details.  Previously, the electoral roll remained open for a period of seven days after the issue of the writ.

According to the AEC, historically, the calling of an election has resulted in significant numbers of persons enrolling or changing enrolment during the 7 day period, particularly young Australians.  The 7 day period enabled the AEC to advertise and promote enrolment and target particular groups with information campaigns, including Indigenous Australians and people experiencing homelessness.  At the 2004 Federal Election, approximately 423,000 people enrolled, re-enrolled or updated enrolment during the 7 day period.

The purpose of the relevant provisions of the Amendment Act was stated to be to enhance the integrity of the electoral roll.  According to the AEC, however, early close of the rolls does ‘not improve the accuracy of the rolls for an election’ and makes them ‘less accurate, because less time will be available for existing electors to correct their enrolments and for new enrolments to be received’.  An Australian National Audit Office performance audit of the roll in 2001/02 found that it was of ‘high integrity’ and that there was no evidence of widespread or organized fraud that needed to be addressed by closing the rolls early.

The Parliamentary Joint Standing Committee on Elections (2001, 2005) and the Senate Finance and Public Administration Committee (2006) have consistently found that the voters most adversely affected by the early close of the rolls are young Australians, and those with limited access to information, knowledge of the electoral system or means of enrolment, including people experiencing homelessness, Indigenous Australians, people with disability and Australians from non-English speaking backgrounds.  By way of contrast, Article 25 of the International Covenant on Civil and Political Rights (which has been ratified by Australia) provides that every citizen has the right and should have the opportunity, without discrimination or any unreasonable restrictions, to vote.  Article 25 has been interpreted by the UN Human Rights Committee to provide that ‘States must take effective measures to ensure that all persons entitled to vote are able to exercise that right.  Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed.’ (HRC, General Comment 25).

Pursuant to the principles established by the High Court in Roach v AEC, the plaintiffs will argue that the early close of the rolls is a limitation or impairment of the right to vote, that the purpose of the impairment is not demonstrably justified, and that the means of achieving that purpose are not reasonably appropriate and adapted, or proportionate, to the maintenance of the constitutionally prescribed system of representative government.  The plaintiffs will also argue that the early close of the roll and the consequent disenfranchisement of otherwise eligible voters, is incompatible with the Constitutional requirement (ss 7 and 24) that the Houses of Parliament be ‘directly chosen by the people’.

The Centre is being assisted in this matter by Mallesons Stephen Jaques, together with Ron Merkel QC, Kristen Walker, Fiona Forsyth and Neil McAteer of Counsel. 

Philip Lynch is Executive Director of the Human Rights Law Resource Centre

Centre Makes Submissions Regarding Investigation of Police-Related Deaths

On 8 July 2010, the Centre made submissions in the Coroners’ Court in the inquest into the death of 15-year old Tyler Cassidy, who was fatally shot by police in 2008.  The submissions focused on the independence, adequacy and effectiveness of the investigation into Tyler’s death, outlining that such deaths should be investigated by a body that is practically, institutionally and hierarchically independent of the body or persons being investigated. 

Emily Howie is Director of Advocacy and Strategic Litigation with the Human Rights Law Resource Centre

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Seminars and Events

‘Human Rights as Foreign Policy’ with Prof Alison Brysk, the Rt Hon Malcolm Fraser AC CH, Chris Sidoti and Daniel Flitton

16 August 2010, Melbourne

The Human Rights Law Resource Centre and the Australian Council for International Development present a public seminar on ‘Human Rights as Foreign Policy’.

Time:      6.00pm to 7.45pm

Date:      Monday, 16 August 2010

Venue:   Blake Dawson, Level 26, 181 William Street, Melbourne

Cost:      $25 / $15 concession or full-time students

RSVP:    9 August 2010 (Use booking and payment form at www.hrlrc.org.au)

Alison Brysk has authored and edited numerous books on human rights, foreign policy and globalization.  Prof Brysk’s most recent book is Global Good Samaritans: Human Rights as Foreign Policy (OUP, 2009).

Malcolm Fraser was Prime Minister of Australia from 1975 to 1983.  He was Chairperson of CARE Australia from 1987 to 1992 and President of CARE International from 1990 to 1995. 

Chris Sidoti is an international human rights expert and consultant.  He has worked as Australian Human Rights Commissioner, Australian Law Reform Commissioner and Executive Director of the International Service for Human Rights in Geneva.

Daniel Flitton is Diplomatic Editor for The Age and writes on international affairs and foreign policy.  He previously worked as an analyst at the Office of National Assessments and as an academic at the ANU and Deakin University. 

‘The Erosion of the Right to Privacy in the Fight against Terrorism’ with Prof Martin Scheinin, UN Special Rapporteur on Human Rights and Counter-Terrorism

24 August 2010, Melbourne

The Human Rights Law Resource Centre and the Institute for International Law and the Humanities at Melbourne Law School present a seminar on ‘The Erosion of the Right to Privacy in the Fight against Terrorism’.

Time:      5.30pm to 7.00pm

Date:      Tuesday, 24 August 2010

Venue:   Melbourne Law School, 185 Pelham Street, Carlton

RSVP:    23 August 2010 to vesnas@unimelb.edu.au. 

Martin Scheinin is UN Special Rapporteur on the promotion and protection of human rights while countering terrorism and Professor of Public International Law at the European University Institute in Florence. 

Educating for Human Rights, Peace and Inter-Cultural Dialogue

4-6 November 2010, UWS, Sydney

This conference will examine the contribution of human rights culture to the good functioning of the civil society; highlight key trends and achievements in human rights education in particular, and aim to secure greater commitment for future human rights education.  Confirmed speakers include the Hon Michael Kirby, the Hon Catherine Branson, the Hon Robert McClelland, Julian Burnside QC and Dr Helen Szoke. 

For further information, see www.humanrightseducationconference2010.com.au/. 

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Human Rights Resources and Reviews

HRLRC in the News

The Centre has featured in the following news reports since the last Bulletin:

• Cynthia Banham, ‘Time to Practise What We Preach on Human Rights’, Sydney Morning Herald (Sydney), 21 July 2010
• ABC Law Report, ‘IVF Treatment for Prisoners’, ABC Radio National, 20 July 2010
• Andrea Petrie, ‘Welfare Cheat Wins Right to IVF on Jail Time’, The Age (Melbourne), 10 July 2010
• AAP, ‘Prisoner Wins Access to IVF’, The Australian (Sydney), 9 July 2010
• Paul Anderson, ‘Jailed Welfare Cheat Granted Access to IVF Treatment’, Herald Sun (Melbourne), 9 July 2010
• ABC, ‘Prisoner Wins Right to Continue IVF Treatment’, ABC Online, 9 July 2010
• ABC, ‘Gay Group Gives Evidence Over Church Discrimination’, ABC Online, 9 July 2010
• Greg Roberts, ‘Cassidy’s Family Try to Suppress Details’, Nine News (Melbourne), 8 July 2010
• Alex Boxsell, ‘Rights Bill by Stealth Feared’, Australian Financial Review (Sydney), 2 July 2010

Book Launch: The Change Imperative: Creating a Next Generation NGO

A major new book on NGO strategy, The Change Imperative: Creating a Next Generation NGO by Paul Ronalds, will be launched at 6pm on 3 August 2010 at Readings Bookstore, 309 Lygon Street, Carlton. 

The book will be launched by the Rev Tim Costello, CEO of World Vision Australia. 

The book argues that international non-governmental organisations are in the midst of a strategic revolution.  Faced with the challenge of managing their growing size and influence in international politics, these organizations are making decisions that will determine their long term survival.  Those that are unable to respond to increased politicization of aid, new technologies and demands for increased accountability; those that struggle to define their role in a world that has only recently begun to recognize their authority, will fail to meet their goals.  Those that are committed to flexibility, learning and rethinking their strategies and structure will see their organizations succeed.

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Foreign Correspondent

Reflections from Domestic Human Rights NGO Engaging with the UN in Geneva

The HRLRC has recently undertaken to establish a presence in Geneva for 9 months with the general aim of enhancing the effectiveness of the HRLRC’s engagement with the UN human rights system.  Having just returned from my three month placement in Geneva, we thought it opportune for me to offer a few thoughts and reflections from my time spent there. 

My first impression is one of how accessible and available everyone and everything is in Geneva.  Almost without exception, everyone I met was extraordinarily giving of their time, expertise and experience – whether they be UN experts, people working in international NGOs or OHCHR staff.  The chance to have coffee with Committee members, observe a Human Rights Council session first hand, meet with other NGOs undertaking similar work in other countries, walk the corridors of the OHCHR office or even bump into a Special Rapporteur on the tram are simply not opportunities that happen anywhere but in Geneva.  For a human rights organisation based on the other side of the world, the opportunity to spend an extended period of time in Geneva is invaluable. 

Second, and it seems kind of obvious to say, but Geneva is truly an international city.  Whether it’s people who have made their home in Geneva, or others who are short term visitors, the Geneva community is full of diverse people from all over the world.  Particularly as someone working for a domestic NGO in a country far, far away, it is enormously beneficial to be exposed to a whole range of different perspectives and experiences from human rights defenders from all parts of the globe.

Third, and probably most significantly, I’m coming to realise more and more that the UN is an inherently political beast.  Given the fundamental principle of state sovereignty and the central role played by member states, the success of the UN’s human rights mechanisms is largely dependent on the approach taken by member states.  Driven largely by fears of being criticised, some member states often play an active role in ensuring that human rights mechanisms are weakened, politicised and therefore ineffective. 

This leads me to my fourth observation, which is the notable silence of many countries, such as Australia, that promote themselves as human rights leaders.  At times, the loud voices of the human rights ‘spoilers’ tend to dominate proceedings and result in criticism being directed at many of the UN mechanisms, often unfairly.  Such criticisms are very rarely balanced or rejected by other member states.  My impression is that a much greater role must be played by the human rights ‘supporters’ like Australia in order to counter the politicisation and obfuscation that is often perpetuated by the human rights spoilers and to ensure that discussions of human rights situations are balanced and principled. 

Fifth, there is a crucial role played by NGOs in the effective operation of the UN system.  NGOs play an invaluable role in both bringing matters to the attention of human rights mechanisms, promoting their discussion and in ensuring that the outcomes of such discussions result in real change on the ground.  Given the limited opportunities for formal involvement by NGOs, much of the influence happens informally in the corridors and behind closed doors.  Greater must be done to protect and enhance the significant role that NGOs play.  Ensuring that there is sufficient space for the voices of human rights defenders to be heard is absolutely fundamental to the effective operation of the UN and its human rights mechanisms. 

My sixth impression, and probably the starkest to me as someone who works with a domestic NGO, is the lack of involvement of domestic NGOs in discussions about institutional reform of the UN mechanisms.  For a range of reasons, not the least being a lack of time and resources, domestic NGOs are largely silent in discussions relating to matters of major institutional reform, such as the review of the Human Rights Council and potential reform of the treaty monitoring bodies.  Given that it is domestic NGOs which often have the practical, on the ground experience of engaging with these mechanisms, it is imperative that their voices are heard and included in these important discussions to ensure that such mechanisms are strengthened and made more relevant and effective.

Finally, there is no doubt that, at its best, the UN has great potential to effect substantial change to the human rights situations on the ground in many countries.  However, at its worst, the UN can be a time-consuming, ineffective bureaucracy.  NGOs must therefore be strategic about which mechanisms to engage with and how to do so most effectively, otherwise valuable time and resources can be wasted on ineffective mechanisms.  Change doesn’t begin, nor does it end, in Geneva.  Rather the UN’s various human rights mechanisms are to be used by NGOs on the ground as valuable tools to effect change to human rights situations.

July Update

And, just in case you are worried about missing the usual foreign correspondent piece, here is an update about UN news from the last month:

The third session of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) took place in Geneva from 12 to 16 July 2010.  The main agenda items for the meeting were a progress report on EMRIP’s study on Indigenous peoples and the right to participation in decision-making and a general discussion on the use of the Declaration on the Rights of Indigenous Peoples at the international, regional and national levels to advance the rights of Indigenous peoples.  Over 500 participants attended the meeting, including a significant contingent of Australian organisations. 

The 99th session of the Human Rights Committee is currently sitting in Geneva.  Much of the attention on the Committee’s session has focused on the examination of Israel, particularly on Israel’s position with respect to the application of the ICCPR obligations with respect to the occupied Palestinian territories.  The Committee is also undertaking its periodic examinations of Estonia, Cameroon and Colombia, as well as continuing its discussion on the development of a new General Comment on freedom of expression. 

The eleventh Inter-Committee Meeting of the Human Rights Treaty Bodies (ICM) was held in Geneva from 28 to 30 June 2010.  The items on the agenda focused on discussion of the working methods of treaty bodies and, in particular, the new optional reporting procedure of developing the list of issues prior to reporting by states parties – a practice that has recently been adopted by the Committee against Torture and the Human Rights Committee.  The ICM’s agenda also included informal consultations with states parties and a joint meeting with special procedures mandate holders. 

Of particular relevance to Australia, the Committee on the Elimination of Discrimination against Women is currently in the process of examining Australia’s compliance with CEDAW.  Sitting in New York, the Committee engaged in an interactive dialogue with representatives of the Australian Government on 20 July and will release its Concluding Observations on 30 July 2010.  Australia is also due to be reviewed for its compliance with the Convention of the Elimination of All Forms of Racial Discrimination (CERD) in Geneva on 10 and 11 August 2010, however there are concerns about whether the review will take place due to the Government being in caretaker mode ahead of the election on 21 August 2010. 

Ben Schokman is Director of International Advocacy with the Human Rights Law Resource Centre

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If I Were Attorney-General…

A Ten Point Plan for the Promotion and Protection of Human Rights in Australia

Australia’s Human Rights Legacy and the 2010 Federal Election

Respect for human rights is the foundation of a community that is fair, just, cohesive and inclusive.  The promotion and protection of human rights should be a key priority for the next Australian Government. 

On the international stage, Australia has a proud bipartisan history in the development of human rights laws and institutions.  At home, the recent National Human Rights Consultation demonstrated that human rights matter deeply to Australians.  Human rights principles resonate with Australian democratic values, including the rule of law and our sense of a fair go. 

The Consultation also demonstrated, however, that our framework of laws and institutions does not provide comprehensive protection of rights, particularly for vulnerable or disadvantaged groups.  The Consultation disclosed a strong majority view that ‘we could do better in guaranteeing fairness for all within Australia and in protecting the dignity of people who miss out’, including the homeless, people with mental illness, Aboriginal Australians, asylum seekers and children with disability. 

Ten Policies for a Fairer Australia

The next Federal Government should commit to the following policies for a fairer Australia:

1. A comprehensive poverty alleviation and social inclusion strategy, with holistic, concrete and measurable programs and targets, including in the areas of Indigenous disadvantage, mental illness, violence against women and homelessness.
2. Consolidated federal anti-discrimination legislation which actively promotes equality, provides comprehensive protection against discrimination and establishes reporting frameworks and requirements to measure progress.  Equality can contribute to social cohesion, higher productivity and participation, and improved outcomes in areas including education and health. 
3. Strengthened parliamentary engagement with human rights, including by enacting the Human Rights (Parliamentary Scrutiny) Bill 2010, requiring the preparation of reasoned Statements of Compatibility for all proposed legislation, and empowering the Joint Parliamentary Human Rights Committee to ‘monitor national and international human rights obligations and provide suggestions and recommendations on how to best promote and protect human rights standards’. 
4. An inquiry into the merits of constitutional amendment to enshrine the right to equality and non-discrimination.
5. A comprehensive federal Human Rights Act which provides legal recognition and protection of all civil, political, economic, social and cultural rights and establishes mechanisms to promote human dignity, good government and accountability.
6. The establishment of mechanisms to ensure independent monitoring, oversight and scrutiny of all places of detention, including prisons, immigration detention centres, juvenile justice facilities, police cells, psychiatric hospitals and disability institutions.  The humane treatment of detainees contributes to rehabilitation, reduced recidivism, and safer and more cohesive communities. 
7. The abolition of mandatory immigration detention and off-shore processing, an increase in Australia’s humanitarian intake, and access to adequate housing, health care, education and work rights for refugees and asylum-seekers.  The next Federal Government should also legislate to provide complementary protection in accordance with Australia’s refugee and human rights law obligations. 
8. A comprehensive review of Australia’s counter-terrorism laws, policies and practices to ensure that they are consistent with international human rights standards and are reasonable, necessary, proportionate and effective.
9. Committing to use the UN Declaration on the Rights of Indigenous Peoples as the basis for Indigenous affairs, including in relation to: the National Congress of Australia’s First Peoples; the commitment to ‘Close the Gap’; the amendment of the Northern Territory Intervention and native title legislation; the provision of reparations to the Stolen Generations; the repayment of Stolen Wages; and Treaty negotiations. 
10. A human rights-based approach to foreign policy, including by: undertaking Human Rights Impact Assessments across all areas of foreign affairs (including aid, development, trade, investment, business, labour, migration, defence, military cooperation, security and the environment); ensuring that human rights are incorporated into the objectives and activities of all regional organisations and processes in which Australia participates and that impact on human rights; and negotiating for bilateral and multilateral agreements to include human rights clauses and safeguards. 

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

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On the international stage, Australia has a proud bipartisan history in the development of human rights laws and institutions.  At home, the recent National Human Rights Consultation demonstrated that human rights matter deeply to Australians.  Human rights principles resonate with Australian democratic values, including the rule of law and our sense of a fair go. 

The Consultation also demonstrated, however, that our framework of laws and institutions does not provide comprehensive protection of rights, particularly for vulnerable or disadvantaged groups.  The Consultation disclosed a strong majority view that ‘we could do better in guaranteeing fairness for all within Australia and in protecting the dignity of people who miss out’.

On 21 July 2010, the Human Rights Law Resource Centre released Human Rights 2010 – 10 Policies for a Fairer Australia.   Human Rights 2010 briefly sets out ten policies to which the next Federal Government should commit for a fairer Australia.  Together, the policies would promote human dignity, address disadvantage, enhance good government, and strengthen accountability. 

On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment.  The finding overturns a decision by the Secretary of the Department of Justice to deny Ms Castles access to IVF treatment and means that Ms Castles will be eligible for permits to leave prison on a visit-by-visit basis. 

The judgment affirms the principle – well-established in international human rights jurisprudence – that prisoners should not be subjected to hardship or constraint other than that which necessarily results from the deprivation of liberty.  Particular attention is paid to the fundamental importance of prisoners’ access to healthcare and IVF treatment is recognised as legitimate treatment necessary for the preservation of health. 

This matter was run on a pro bono basis by the Human Rights Law Resource Centre, together with Blake Dawson, Debbie Mortimer SC and Michael Borsky of Counsel. 

Facts

Ms Castles was convicted of social security fraud in November 2009 and sentenced to three years imprisonment, to be released on her own recognisance after 18 months.  She is currently imprisoned at HM Prison Tarrengower, a minimum security women’s prison with an emphasis on release preparation and community integration. 

Prior to her incarceration, Ms Castles had been receiving IVF treatment for over a year.  From 27 November 2009, Ms Castles and her lawyers made repeated requests for approval for Ms Castles to continue to access IVF at her own cost, emphasising that she would become ineligible for treatment from December 2010 by reason of her age.  By late-April 2010, the Secretary for the Department of Justice had still failed to make a decision, despite the prospects of Ms Castles becoming pregnant through IVF decreasing significantly with the passage of time. 

Ms Castles commenced proceedings on 23 April 2010 with an application for interlocutory relief which was refused (see Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010)). 

On 3 May 2010, the Secretary of the Department of Justice made a decision to deny Ms Castles’ request to access IVF treatment.  The Secretary reasoned that Ms Castles ‘does not have an entitlement to this form of medical treatment’ and cited, among other things, resource constraints and the precedent that may be set by allowing Ms Castles to access treatment.  

At the full hearing Ms Castles argued that she had a right under s 47(1)(f) of the Corrections Act 1986 (Vic) to access IVF treatment.  Section 47(1)(f) provides that all prisoners have a right to ‘have access to reasonable medical care and treatment necessary for the preservation of health’. 

Ms Castles also relied on her rights under the Charter of Human Rights and Responsibilities Act 2006 to privacy and family (s 13), equality (s 8) and to humane treatment in detention (s 22) and on common law duties owed to her as a prisoner. 

Decision

Emerton J found that Ms Castles has a right under s 47(1)(f) of the Correction Act to undergo IVF treatment.  The Corrections Act was found to entitle prisoners to ‘do more than remain in a “holding pattern” with respect to their heath while imprisoned.’

Her Honour held that IVF treatment is both necessary for the preservation of Ms Castles’ reproductive health and reasonable given:

• the commitment to the treatment that Ms Castles has already demonstrated;
• her willingness to pay for further treatment; and
• her age and the fact that she will become ineligible for further treatment before she is released from prison.

Accordingly, Ms Castles will be eligible for permits to leave the prison on a visit-by-visit basis, providing that adequate consideration has been given to security and resource issues.     

The Court recognised that IVF is ‘a legitimate medical treatment for a legitimate medical condition’.  In a landmark statement on the status of reproductive healthcare, her Honour held:

I see no proper basis to treat IVF treatment differently from other forms of medical intervention that are considered to be necessary to enable people to live dignified and productive lives, unencumbered by the effects of disease or impairment.

Application of the Victorian Charter

The Charter did not determine the issue before the Court.  Nevertheless, the judgment includes extensive comment on various Charter provisions. 

The right to humane treatment in detention (s 22)

The Court found that the right to humane treatment in detention:

[r]equires the Secretary and other prison authorities to treat Ms Castles humanely, with respect for her dignity and with due consideration for her particular human needs.

Her Honour took as a starting point that prisoners should not be subjected to hardship or constraint other than that which results from the deprivation of liberty and accepted that:

access to health case is a fundamental aspect of the right to dignity.  Like other citizens, prisoners have a right to…a high standard of health.  That is to say, the health of a prisoner is as important as the health of any other person.  

The Court stated that the right articulated in s 47(1)(f) of the Corrections Act ‘must be construed consistently with the requirement that prisoners be treated with humanity and with respect for their human dignity’.  This right does not entail access to any treatment that a prisoner may want or have access to were he or she not imprisoned, but does require provision of ‘a variety of facilities, goods, services and conditions necessary for the realisation of a high standard of health’. 

The right to privacy (s13)

The Court found that while the right to privacy is a fundamental ‘right of considerable amplitude’, it was not engaged in the proceeding.  Relying largely on the Charter’s Explanatory Memorandum, which states that ‘[i]t is not Parliament’s intention to create a right to found a family’, her Honour held that:  

the Charter rights which might otherwise have encompassed rights to ART, recognition of legal parentage and adoption should be construed as not encompassing such rights. 

The Victorian Equal Opportunity and Human Rights Commission, intervening under s 40(1) of the Charter, argued against this interpretation and its submissions were adopted in full by the plaintiff.  The Commission submitted that the omission of a right to found a family from the Charter was merely intended to ensure that the Charter did not pre-empt the results of a Victorian Law Reform Commission reference on assisted reproduction and adoption and should not restrict the scope of other rights that are protected in the Charter. 

The right to equality (s 8)

The Court concluded that there had been no breach of the right to equality and non-discrimination on the basis of impairment.  The Court found that Ms Castles had not received less favourable treatment than that afforded to a fertile prisoner who wishes to become pregnant.  Further, infertility was found not to be ‘a substantial reason’ for the denial of a permit to access IVF treatment as required by the Charter read in conjunction with s 8(2) of the Equal Opportunity Act 1995 (Vic). 

Obligation to ‘give proper consideration’ to human rights (s 38(1))

The plaintiff submitted that the Secretary had failed to give ‘proper consideration’ to human rights, as required by s 38(1) of the Charter.  In response, the defendants referred to briefings from Justice Health and Corrections Victoria which had been provided to the Secretary and which considered human rights (although relevant sections were redacted to remove legal advice from the Victorian Government Solicitor’s Office).  

In consideration of this issue, the Court held that the requirement to give proper consideration ‘requires a decision maker to do more than merely invoke the Charter like a mantra’ and to ‘seriously turn his or her mind to the possible impact of the decision on a person’s human rights’, but ‘should not be a sophisticated legal exercise’.  Rather, proper consideration should be taken to involve:

understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. 

It was held that consideration of human rights in accordance with s 38(1) of the Charter should not be ‘overly scrutinised by the courts’. 

Use of international jurisprudence in defining rights (s 32(2))

In considering the content and application of rights, the Court affirmed the relevance of human rights decisions and commentary from overseas, referring to jurisprudence from the European Court of Human Rights, the UK House of Lords, New Zealand, UN treaty bodies and international human rights experts.  Her Honour stated that consideration of international jurisprudence:

is a good thing, as it will expose Victorian jurisprudence to relevant jurisprudence from other parts of the world and, indeed, make Victorian jurisprudence more relevant in the international context.

This approach may be contrasted with that taken in another recent judgement of the Supreme Court, WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010), in which Kaye J declined to rely upon international jurisprudence in his interpretation of the right to privacy under the Charter.   

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/310.html. 

Rachel Ball is Director of Policy and Campaigns with the Human Rights Law Resource Centre

Castles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010)

On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment.  The finding overturns a decision by the Secretary of the Department of Justice to deny Ms Castles access to IVF treatment and means that Ms Castles will be eligible for permits to leave prison on a visit-by-visit basis. 

The judgment affirms the principle – well-established in international human rights jurisprudence – that prisoners should not be subjected to hardship or constraint other than that which necessarily results from the deprivation of liberty.  Particular attention is paid to the fundamental importance of prisoners’ access to healthcare and IVF treatment is recognised as legitimate treatment necessary for the preservation of health. 

This matter was run on a pro bono basis by the Human Rights Law Resource Centre, together with Blake Dawson, Debbie Mortimer SC and Michael Borsky of Counsel. 

Facts

Ms Castles was convicted of social security fraud in November 2009 and sentenced to three years imprisonment, to be released on her own recognisance after 18 months.  She is currently imprisoned at HM Prison Tarrengower, a minimum security women’s prison with an emphasis on release preparation and community integration. 

Prior to her incarceration, Ms Castles had been receiving IVF treatment for over a year.  From 27 November 2009, Ms Castles and her lawyers made repeated requests for approval for Ms Castles to continue to access IVF at her own cost, emphasising that she would become ineligible for treatment from December 2010 by reason of her age.  By late-April 2010, the Secretary for the Department of Justice had still failed to make a decision, despite the prospects of Ms Castles becoming pregnant through IVF decreasing significantly with the passage of time. 

Ms Castles commenced proceedings on 23 April 2010 with an application for interlocutory relief which was refused (see Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010)). 

On 3 May 2010, the Secretary of the Department of Justice made a decision to deny Ms Castles’ request to access IVF treatment.  The Secretary reasoned that Ms Castles ‘does not have an entitlement to this form of medical treatment’ and cited, among other things, resource constraints and the precedent that may be set by allowing Ms Castles to access treatment.  

At the full hearing Ms Castles argued that she had a right under s 47(1)(f) of the Corrections Act 1986 (Vic) to access IVF treatment.  Section 47(1)(f) provides that all prisoners have a right to ‘have access to reasonable medical care and treatment necessary for the preservation of health’. 

Ms Castles also relied on her rights under the Charter of Human Rights and Responsibilities Act 2006 to privacy and family (s 13), equality (s 8) and to humane treatment in detention (s 22) and on common law duties owed to her as a prisoner. 

Decision

Emerton J found that Ms Castles has a right under s 47(1)(f) of the Correction Act to undergo IVF treatment.  The Corrections Act was found to entitle prisoners to ‘do more than remain in a “holding pattern” with respect to their heath while imprisoned.’

Her Honour held that IVF treatment is both necessary for the preservation of Ms Castles’ reproductive health and reasonable given:

• the commitment to the treatment that Ms Castles has already demonstrated;
• her willingness to pay for further treatment; and
• her age and the fact that she will become ineligible for further treatment before she is released from prison.

Accordingly, Ms Castles will be eligible for permits to leave the prison on a visit-by-visit basis, providing that adequate consideration has been given to security and resource issues.     

The Court recognised that IVF is ‘a legitimate medical treatment for a legitimate medical condition’.  In a landmark statement on the status of reproductive healthcare, her Honour held:

I see no proper basis to treat IVF treatment differently from other forms of medical intervention that are considered to be necessary to enable people to live dignified and productive lives, unencumbered by the effects of disease or impairment.

Application of the Victorian Charter

The Charter did not determine the issue before the Court.  Nevertheless, the judgment includes extensive comment on various Charter provisions. 

The right to humane treatment in detention (s 22)

The Court found that the right to humane treatment in detention:

[r]equires the Secretary and other prison authorities to treat Ms Castles humanely, with respect for her dignity and with due consideration for her particular human needs.

Her Honour took as a starting point that prisoners should not be subjected to hardship or constraint other than that which results from the deprivation of liberty and accepted that:

access to health case is a fundamental aspect of the right to dignity.  Like other citizens, prisoners have a right to…a high standard of health.  That is to say, the health of a prisoner is as important as the health of any other person.  

The Court stated that the right articulated in s 47(1)(f) of the Corrections Act ‘must be construed consistently with the requirement that prisoners be treated with humanity and with respect for their human dignity’.  This right does not entail access to any treatment that a prisoner may want or have access to were he or she not imprisoned, but does require provision of ‘a variety of facilities, goods, services and conditions necessary for the realisation of a high standard of health’. 

The right to privacy (s13)

The Court found that while the right to privacy is a fundamental ‘right of considerable amplitude’, it was not engaged in the proceeding.  Relying largely on the Charter’s Explanatory Memorandum, which states that ‘[i]t is not Parliament’s intention to create a right to found a family’, her Honour held that:  

the Charter rights which might otherwise have encompassed rights to ART, recognition of legal parentage and adoption should be construed as not encompassing such rights. 

The Victorian Equal Opportunity and Human Rights Commission, intervening under s 40(1) of the Charter, argued against this interpretation and its submissions were adopted in full by the plaintiff.  The Commission submitted that the omission of a right to found a family from the Charter was merely intended to ensure that the Charter did not pre-empt the results of a Victorian Law Reform Commission reference on assisted reproduction and adoption and should not restrict the scope of other rights that are protected in the Charter. 

The right to equality (s 8)

The Court concluded that there had been no breach of the right to equality and non-discrimination on the basis of impairment.  The Court found that Ms Castles had not received less favourable treatment than that afforded to a fertile prisoner who wishes to become pregnant.  Further, infertility was found not to be ‘a substantial reason’ for the denial of a permit to access IVF treatment as required by the Charter read in conjunction with s 8(2) of the Equal Opportunity Act 1995 (Vic). 

Obligation to ‘give proper consideration’ to human rights (s 38(1))

The plaintiff submitted that the Secretary had failed to give ‘proper consideration’ to human rights, as required by s 38(1) of the Charter.  In response, the defendants referred to briefings from Justice Health and Corrections Victoria which had been provided to the Secretary and which considered human rights (although relevant sections were redacted to remove legal advice from the Victorian Government Solicitor’s Office).  

In consideration of this issue, the Court held that the requirement to give proper consideration ‘requires a decision maker to do more than merely invoke the Charter like a mantra’ and to ‘seriously turn his or her mind to the possible impact of the decision on a person’s human rights’, but ‘should not be a sophisticated legal exercise’.  Rather, proper consideration should be taken to involve:

understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. 

It was held that consideration of human rights in accordance with s 38(1) of the Charter should not be ‘overly scrutinised by the courts’. 

Use of international jurisprudence in defining rights (s 32(2))

In considering the content and application of rights, the Court affirmed the relevance of human rights decisions and commentary from overseas, referring to jurisprudence from the European Court of Human Rights, the UK House of Lords, New Zealand, UN treaty bodies and international human rights experts.  Her Honour stated that consideration of international jurisprudence:

is a good thing, as it will expose Victorian jurisprudence to relevant jurisprudence from other parts of the world and, indeed, make Victorian jurisprudence more relevant in the international context.

This approach may be contrasted with that taken in another recent judgement of the Supreme Court, WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010), in which Kaye J declined to rely upon international jurisprudence in his interpretation of the right to privacy under the Charter.   

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/310.html. 

Rachel Ball is Director of Policy and Campaigns with the Human Rights Law Resource Centre

Smith, R (on the application of) v Secretary of State for Defence & Anor [2010] UKSC 29 (30 June 2010)

The Supreme Court of the United Kingdom has held by a 6:3 majority that the Human Rights Act 1998 (UK) has no application to members of the armed forces serving overseas when they are outside military bases.  Therefore, deaths occurring on foreign soil need not be subject to full investigation into the possibility of State failure to protect human life under art 2 of the European Convention on Human Rights.  However, deaths of military personnel on active service overseas which do occur within the jurisdiction of the United Kingdom and which appear to result from State failure should be subject to comprehensive investigation.

Facts

Private Jason Smith of the British Territorial Army was mobilised for service in Iraq in 2003.  After spending eight days in Kuwait to acclimatize, he was stationed at Camp Abu Naji in Iraq and billeted to an un-air-conditioned athletics stadium 12km from the base.  By August 2003, temperatures exceeded 50ºC in the shade.  Private Smith reported sick on 9 August, complaining about the heat, but continued to carry out various duties.  On 13 August he was found collapsed and rushed to the Camp Abu Naji hospital but died shortly after of hyperthermia.

The initial coronial inquest into Private Smith’s death was quashed by the High Court due to procedural errors.  Private Smith’s mother argued that her son died within the legal jurisdiction of the United Kingdom and was therefore entitled to protection under the Human Rights Act and the Convention.  Under art 2 of the Convention (the right to life), a death which may implicate a public authority must be subject to an art 2 standard of investigation.  This requires broader inquiry into whether the death was the result of systemic State failure to implement policies protective of human life.

The Secretary of State for Defence conceded that Private Smith’s death on a British army base invoked the jurisdiction of the United Kingdom, and a new Article 2 inquest into his death would be held accordingly.  However, the case continued in order to obtain judgment on the following:

• Is a soldier on military service abroad protected under the Human Rights Act when outside his or her base?
• If so, must the death of such a soldier be the subject of an art 2 inquest?

At first instance, confirmed by the Court of Appeal, both of these questions were answered in the affirmative.  The Secretary of State for Defence appealed to the Supreme Court.

Decision

The Supreme Court allowed the appeal on the jurisdiction issue, but dismissed the appeal on the inquest issue.

Jurisdiction

The majority (Lords Phillips, Walker, Collins, Hope, Rodger and Brown) held that, for the purposes of the Convention, armed servicemen/women posted abroad are not within the jurisdiction of the United Kingdom and therefore are not protected under the Human Rights Act.  The majority observed that, according to the jurisprudence of the Strasbourg Court, ‘jurisdiction’ under the Convention is essentially territorial, but can arise extra-territorially in exceptional circumstances.  The Respondent argued that extra-territorial jurisdiction could arise on the basis of personal status, as members of the armed forces are under the authority and control of the United Kingdom.  However, the majority rejected this submission.  Lord Phillips reasoned that, as the Convention was drafted shortly after the large-scale deployment of troops in World War II, it was unlikely that State Parties intended it to extend to armed operations on foreign soil.  In any case, whether personal status could trigger jurisdiction under the Convention was a question for the Strasbourg Court.  According to Lord Collins, the case of armed servicemen and women serving abroad did not fall within one of the exceptions to territorial jurisdiction recognized by the Strasbourg Court, and there were no policy grounds to justify extending those exceptions in the way the Respondent proposed.  To do so would involve courts in the ultimately non-justiciable issue of how armed conflict is conducted abroad.

The minority (Lady Hale, Lords Mance and Kerr) accepted that jurisdiction under the Convention could be triggered by personal status.  Their Lordships reasoned that the United Kingdom exercises authority and control over British military personnel.  Members of the armed forces reciprocate that authority with allegiance and obedience on the basis that they will receive the support and protection of the country they serve.  Although the United Kingdom could not protect human life in Iraq to the same extent that it did domestically, it should, to the extent possible, put in place facilities to protect against risks to the armed forces.

Inquest

The Court held unanimously that art 2 investigations are not automatically required whenever military personnel die abroad.  However, if an ordinary inquest into a death reveals a possible breach of the right to life by the State, an art 2 investigation is required.  This was the case with respect to Private Smith’s death.

Relevance to the Victorian Charter

This case advocates a narrow understanding of ‘jurisdiction’ for the purposes of human rights legislation.  If matter arises which involves Victorian public authorities acting inter-state or internationally, similar arguments about extra-territorial application may arise.

The decision also underscores the importance of comprehensive investigation into deaths which may involve State failure to protect the right to life under s 9 of the Charter.  This includes the conduct of coronial inquests generally, as well as investigations into deaths associated with police contact.  Presently, no independent body exists to carry out investigations into such deaths in a way which would comply with the Government’s obligations under the Charter.

The decision is at www.bailii.org/uk/cases/UKSC/2010/29.html.

Sarah Lenthall is a volunteer with the Human Rights Law Resource Centre

Department of Human Services & Department of Health (Anti-Discrimination Exemption) [2010] VCAT 1116 (29 June 2010)

In this decision, McKenzie DP granted an exemption on the basis that it constitutes an appropriate special measure to reduce disadvantage caused by discrimination, as permitted by s 8(4) of the Charter. 

Facts

The Department of Human Services and the Department of Health (Departments) applied for a three year exemption from the prohibition on race discrimination under the EO Act to enable the Departments to advertise for and employ up to 118 Indigenous people for positions within the Departments.  The proposal is part of an Aboriginal Public Sector Employment and Career Development Plan (Action Plan), which aims to reduce disadvantage suffered by Indigenous Victorians by promoting the education and employment of Indigenous Victorians in the public sector.  The Action Plan is the result of wide-ranging consultation with the Indigenous community, public sector officials and key union groups.  It also has high-level endorsement, including from the Premier.

The Departments submitted extensive material setting out the proposal and the context of the proposal, including the following statistics.

• 76% of non-Indigenous Victorians complete high school, compared with 31% of Indigenous children.
• 18% of non-Indigenous Victorians enrol at university, compared to 3% of Indigenous Victorians.
• 73% of non-Indigenous Victorians of working age are in employment, compared to 54% of Indigenous Victorians.

Deputy President McKenzie acknowledged the compounding effects of disadvantage.  For example, home ownership depends on financial resources, which in turn depends on employment, which in turn depends on educational qualifications.

Decision

Deputy President McKenzie applied the same legal principles discussed above, and determined that the exemption should be granted.  She considered that the right to equality (ss 8(2) and (3)) and the right to have equal access to the Victorian public sector (s 18(2)(b)) were relevant Charter rights. 

However, McKenzie DP held that s 8(4) of the Charter applies to this proposal.  Section 8(4) provides that a measure does not constitute discrimination if it is taken to assist or advance a group that is disadvantaged because of discrimination.  However, interestingly, McKenzie DP held that s 82 of the EO Act, which permits the provision of special services or benefits to a class of persons to reduce disadvantage, did not apply so clearly that the exemption is unnecessary.  This indicates a potential view that s 8(4) of the Charter has a broader and more beneficial application than s 82 of the EO Act.

Deputy President McKenzie was also of the view that the proposal was a reasonable limit on human rights in the Charter.  This is because the proposal is intended to redress disadvantage caused by discrimination, which is an important purpose, and relates to only a small fraction of the total public sector workforce.  She also noted the strong and overriding ‘public interest in addressing and reducing the clear disadvantage in employment from which Indigenous Victorians suffer’.  She considered that the proposal, in conjunction with various other support mechanisms included in the Action Plan, would not just increase employment of Indigenous Victorians, but might also encourage Indigenous Victorians to stay longer at school and enter university.

The decision is at www.austlii.edu.au/au/cases/vic/VCAT/2010/1116.html. 

Melanie Schleiger is a Senior Lawyer in the Human Rights & Civil Law Service, Victoria Legal Aid, and a Board member of the Human Rights Law Resource Centre

Download the full edition of the Bulletin in [PDF] or [Word].

This edition of the Bulletin, which is proudly sponsored by Allens Arthur Robinson, includes:

• An opinion piece on international treaty body reform, by Professor Michael O’Flaherty, member of the UN Human Rights Committee and Co-Director of the University of Nottingham Human Rights Centre
• Human rights news, including in relation to the report of the UN Special Rapporteur on the Right to Health on Australia, reforms to the Sex Discrimination Act 1984 (Cth), major reports on gender equality and discrimination against African Australians by the Australian Human Rights Commission, Tasmania’s proposal to develop a Charter of Human Rights, and a report by the UN Special Rapporteur on Torture on Papua New Guinea
• Updates on the National Human Rights Framework, including in relation to the Human Rights (Parliamentary Scrutiny) Bill 2010
• Updates on the Victorian Charter of Rights, including an analysis of recent significant Statements of Compatibility
• Victorian Charter case notes, including from the Supreme Court (right to privacy and statutory interpretation under the Victorian Charter)
• Comparative law case notes on significant recent human rights decisions from Canada (administrative tribunals have jurisdiction to hear human rights matters), the UK (obligation to provide support to destitute families), the European Court (interrogations and torture, retrospective justiciability of war crimes, right to privacy and the interception of communications), the ACT (rights of children and families relevant to sentencing of parent), and the UN Human Rights Committee (freedom of religion and conscience objection to military service, protection of the family)
• Information about the Centre’s policy work, including in relation to a major NGO report on Australia to the UN Committee on the Elimination of Racial Discrimination, implementation of the Concluding Observations of the UN Committee on Economic, Social and Cultural Rights, parliamentary scrutiny and human rights protection, human rights and aid effectiveness in PNG, investigation of police related deaths, and Australia’s new framework on law and justice engagement with the Pacific
• Updates on the Centre’s casework and litigation, including in relation to the Centre’s interventions in coronial inquests regarding access to health care in regional areas and the police shooting of a 15 year old boy
• Details of forthcoming human rights seminars and events, including forthcoming HRLRC seminars on foreign policy (with Prof Alison Brysk, the Hon Malcolm Fraser, Chris Sidoti and Daniel Flitton) and human rights and counter-terrorism (with the UN Special Rapporteur on Human Rights and Counter-Terrorism)
• Information about useful human rights resources, including details of HRLRC in the news, and new resources from the Australian Human Rights Commission
• Information about human rights jobs, including with the Victorian Equal Opportunity and Human Rights Commission, the Australian Human Rights Commission and the community legal sector
• Updates on major international human rights developments from our foreign correspondent in Geneva, Claire Mahon (Coordinator of the Project on Economic, Social and Cultural Rights at the Geneva Academy of International Humanitarian Law and Human Rights)
• ‘If I were Attorney-General’ by the Hon Elizabeth Evatt (former judge of the Federal Court and Chief Justice of the Family Court, a former member of the UN Human Rights Committee and the UN Committee on the Elimination of Discrimination against Women, and a Commissioner of the International Commission of Jurists)

Opinion

International Treaty Body Reform Should Protect Human Rights on the Ground

The United Nations human rights treaty bodies constitute a cornerstone of the international human rights supervision system.  The first of the ‘committees’ commenced its work in 1970.  By now, there are 9 of them with a total of 145 elected members.  We are just a handful of ratifications away from the creation of the 10th committee under the International Convention for the Protection of All Persons from Enforced Disappearance.  All but one of the treaty bodies review periodic reports submitted by States, most issue General Comments or Recommendations regarding the provisions of the various treaties, and many consider individual communications and undertake inquiries, while one operates largely through field missions.

For all their effectiveness and accomplishments it has long been recognised that the treaty bodies would benefit from institutional and other reforms.  The former UN High Commissioner for Human Rights, Louise Arbour, identified a litany of concerns, including:

• the extent to which States accept the human rights treaty system on a formal level, but do not constructively engage with it;
• the ad-hoc manner in which the treaty body system has grown, with an overlap of provisions and competencies;
• the growth in the number of treaties and ratifications, resulting in a steep increase in the workload of the treaty bodies;
• the low levels of public awareness of the treaty body system;
• the uneven levels of expertise and independence of treaty body members;
• the variable quality of State party reports to treaty bodies;
• the fact that treaty bodies often have insufficient information to enable them to undertake a full analysis of country situations; and
• the absence of effective, comprehensive follow-up mechanisms for recommendations.

Account needs also to be taken of the broader human rights protection environment that the treaty bodies inhabit.  For instance, it remains unclear what relation they should have with UN Human Rights Council’s Universal Periodic Review procedure.

There have been repeated efforts to address the concerns and these have resulted in modest improvements in procedures and harmonisation of working methods.  Efforts to achieve more sweeping changes have tended to fail.

For instance, former UN Secretary-General Kofi Annan got nowhere with his call for the eventual transition to a single state report that would meet a state’s responsibilities to all treaty bodies.  That idea was rejected by stakeholders, who feared that rights-holders such as children and women would be rendered invisible in a single homogenised report.  In 2005, Louise Arbour proposed the unification of the various committees into a single unified treaty body.  Her idea went nowhere.  The need for a root and branches overhaul of the system did not, however, go away.  Most recently, the current High Commissioner, Navi Pillay, has called for proposals which could enable the system to be more rational, coherent, coordinated and effective.

In response to her call, on 19 November 2009, a group of 35 serving or former members of the treaty bodies issued, the ‘Dublin Statement on the Strengthening of the UN Human Rights Treaty Body System’.  Signatories include members or former members of all the treaty bodies and come from all geographical regions of the world.  The initiative was organised by the University of Nottingham Human Rights Law Centre, with the financial support of the Irish Government.  You can download the statement at: www.nottingham.ac.uk/hrlc/documents/specialevents/dublinstatement.pdf.

The publication of the Dublin Statement was in recognition that the High Commissioner has opened an opportunity for a newly invigorated policy-level process of reflection and action.  The statement does not present detailed solutions or specific reform outcomes.  Instead it is intended as a recapitulation of the elements necessary for an effective process of reform, marking out what its authors consider to be key parameters, objectives and methods for such a programme.  The statement seeks to identify what might be termed a ‘road-map’ for a reform that abides by identified standards of good practice.  In identifying each of the elements of the road-map, the statement distils lessons from previous reform efforts and initiatives.  This exercise can be illustrated with just a few examples:

1. ‘Reform should enhance the capacity of the treaty body system to address the human rights contained in the respective treaties in a manner that respects the universality, indivisibility and the equal significance of all human rights’.  At first sight this observation may appear innocuous.  However, it addresses one of the dominant concerns in the discussions about unified reporting and the unified treaty body; that reform must not put at risk the specificity of protection provided to diverse rights-holders.
2. A lack of consultation prior to the publication of High Commissioner Arbour’s Concept Paper may have contributed to the demise of the unification and related proposals.  In any case, it is self-evident that reform must take account of all relevant points of view.  This consideration is addressed in the statement where it is indicated that ‘reform should always be undertaken in consultation among concerned stakeholder’.  The text adds a number of observations regarding the nature of consultation, such as that it be on the basis of clearly formulated issues and questions, and adopt a human rights-based approach.
3. An area of risk that featured large in the previous reform discussions was that of the uncertainty inherent in any re-negotiation of the treaties.  The statement recalls that a considerable degree of reform can be undertaken without any need for treaty re-negotiation.  With regard to reforms that would demand treaty changes, it observes that any reform goals that require such a process must be of such an importance as to ‘justify the protracted and sometimes unpredictable process of amendment’.

Many past reflections on issues of treaty body reform concentrated on the role and responsibilities of treaty body themselves, States, and sometimes the United Nations secretariat.  However, systemic reform requires the engagement of all the relevant stakeholders, including NGOs and human rights defenders, national human rights institutions and academia.  All of these are addressed by the Statement and specific reform areas are addressed for each of them.

The test of the effectiveness of the Dublin Statement will be its impact in stimulating a new round of reflection that avoids the mishaps of the past.  Signs so far are encouraging.  The statement has been debated in the committees themselves and in their periodic ‘inter-committee’ meetings.  It has been centre-stage in various briefings organised by the High Commissioner’s Office for NGOs and States.  It has helped put treaty body reform back on the agenda for national human rights institutions and NGOs.

These are, of course, just first steps.  The moment will soon arrive for some specific reform options to be put for review.  That will lead to a very sensitive phase of debate, success or failure being determined by the capacity of States, NGOs, treaty body members and the other stakeholders to find common ground.  The facilitatory role of the High Commissioner will be of crucial significance.  Only time will tell whether the efforts will lead to significant achievements.  However, prospects will remain promising if all involved keep in sight what the Dublin Statement describes as the ultimate purpose of all reform: the enhanced protection of human rights at the domestic level.

Michael O’Flaherty FRSA is a member of the UN Human Rights Committee and Professor of Applied Human Rights and Co-Director, University of Nottingham Human Rights Law Centre.  He has also served as Secretary of the UN Committee on the Elimination of Racial Discrimination.

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News

UN Special Rapporteur on the Right to Health Releases Report on Australia

On 3 June 2010, the UN Special Rapportuer on the Right to the Highest Attainable Standard of Health, Anand Grover, released his report following a mission to Australia in November and December 2009.

The report focuses on the standard of living and quality of health care and health services for Aboriginal and Torres Strait Islanders, people in prison and immigration detainees.

Section II of the report considers the international and national legal framework within which the right to health is considered in Australia, and discusses the recognition of international human rights under Australian law.  On this issue, the Special Rapporteur concludes that the Australian Government should take steps to comprehensively enshrine human rights, including the right to health, in Australian law.  He further recommends that such rights be recognized as enforceable and justiciable.

Section III of the report considers the issue of Indigenous health, including as to health status, the underlying social determinants of health (including severe socio-economic disadvantage and social exclusion), and access to health care services and primary health care.

Section IV of the report focuses on the right to health of detainees in Australia, including prisoners and immigration detainees, and notes that all persons deprived of liberty are entitled to the right to the highest attainable standard of health, to be treated with humanity and dignity, and to have equal access to health services as those in the community.  The Special Rapporteur observed inconsistencies and inequalities in treatment and and access to services across different facilities, and was particularly concerned with the disproportionate impact of incarceration on Indigenous populations, as well as persons with mental illness.  He also observed that Australia’s continuing policy of mandatory detention poses significant barriers to the realization of the right to health for asylum seekers and refugees.

Section V of the report sets out the Special Rapporteur’s conclusions and recommendations pertaining to each of the areas discussed above, including that Australia should:

• ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment, and establish an independent national preventive mechanism to conduct regular inspections of all places of detention;
• pass legislation restoring the Racial Discrimination Act vis-à-vis the Northern Territory as a matter of priority, and introduce constitutional protection of the rights of Indigenous peoples;
• develop a national health policy which includes a detailed plan for the full realization of the right to health;
• implement legislative or other guarantees to ensure that the opinions of national representative Indigenous bodies, such as the National Congress of Australia’s First Peoples, are taken into account;
• give priority to education in human rights throughout the country, particularly in respect of education for health professionals;
• address, as a matter of urgency, the qualitative and quantitative inadequacy of educational services for remote communities;
• ensure that Indigenous communities have control over allocation of resources, by providing local governance monitoring structures;
• allocate additional funding to health promotion programs throughout the Northern Territory;
• increase engagement with community health providers by prisons, which would improve continuity of care and facilitate reintegration into the community;
• increase resources for diagnosis, treatment and prevention of mental illnesses within prisons;
• assess and invest in the primary health care sector throughout the prison system;
• undertake research regarding indigenous incarceration issues as a matter of urgency, and ensure that new interventions concerning prevention of incarceration and treatment during incarceration are evidence-based and appropriately evaluated;
• reconsider the policy of mandatory detention of irregular arrivals;
• assess the viability of providing on-site interpreters in immigration detention facilities;
• place detainees with a history of torture and trauma in community detention or on appropriate visas in the community; and
• reconsider the appropriateness of detention facilities continuing to operate on Christmas Island, and assess provision of mental health services to this population as a matter of priority.

The report is at www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.20.Add4.pdf.

A Briefing Paper prepared by the HRLRC to assist the Special Rapporteur is at www.hrlrc.org.au/content/topics/esc-rights/right-to-health-briefing-paper-on-australia-to-un-special-rapporteur-on-the-right-to-health-sept-2009/.

Government Introduces Reforms to Strengthen Sex Discrimination Act

On 24 June, the Attorney-General, Robert McClelland, introduced legislation to amend and strengthen the Sex Discrimination Act 1984 by:

• establishing breastfeeding as a separate ground of discrimination;
• extending protections from discrimination on the grounds of family responsibilities to both women and men in all areas of employment;
• ensuring that protections from sex discrimination apply equally to women and men; and
• providing greater protection from sexual harassment for students and workers.

Introducing the amendment, the Attorney stated that the Bill is part of the Government’s response to the report of the Senate Standing Committee on Legal and Constitutional Affairs into eliminating discrimination and promoting gender equality.  He further stated that the Government will consider other recommendations from the Committee’s Report as part of its commitment in Australia’s Human Rights Framework to consolidate anti-discrimination legislation into a single comprehensive law.

Australian Human Rights Commission Launches Major Reports on Gender Equality and Racism against African Australians

The Australian Human Rights Commission has recently launched major reports on gender equality and discrimination against African Australians.

The Gender Equality Blueprint, launched by Australian Sex Discrimination Commissioner Elizabeth Broderick, sets out 15 recommendations to progress gender equality in five priority areas:

• balancing paid work and family and caring responsibilities;
• ensuring women’s lifetime economic security;
• promoting women in leadership;
• preventing violence against women and sexual harassment; and
• Strengthening national gender equality laws, agencies and monitoring.

A report on discrimination against African Australians, In our own words – African Australians: A review of human rights and social inclusion issues, was launched by Race Discrimination Commissioner, Graeme Innes.  The report documents discrimination and both direct and indirect racism against African Australians.  According to Commissioner Innes, ‘The discrimination these people face, which is sometimes inadvertent, takes place across the gamut of life’s experiences, from employment to housing, education, health services and their connection with the justice system’.

In our own words presents issues, solutions and best practice initiatives, identified by African Australians throughout these consultations, as well as observations and suggestions from other government and non-government stakeholders.

Both reports are at www.humanrights.gov.au.

Tasmania Announces Proposed Enactment of Charter of Rights

On 22 June, the Tasmanian Attorney-General, Lara Giddings, announced that Tasmania will progress towards the enactment of a Charter of Human Rights and Responsibilities.

Ms Giddings said a ‘Charter of Rights and Responsibilities was a key reform which would protect human rights in Tasmania’.  She stated that, ‘In recent years, the Victorian and ACT Governments have both introduced Charters of Rights and Responsibilities.’

Ms Giddings said she would progress the issue in Tasmania by developing a discussion paper before a proposal is taken to Cabinet.

‘The discussion paper will help to dispel some of the myths surrounding Human Rights Charters and to identify where the Victorian or ACT legislation may be adapted to meet Tasmania’s needs.’

Welcoming the announcement, Australian Human Rights Group stated that ‘This positive step will be crucial in building a human rights culture in Tasmania’s public service.  For those whose human rights are violated, the Charter will provide an avenue for achieving justice.  For Tasmanian law makers, the Charter will be a constant reminder of our international human rights obligations’.

UN Special Rapporteur Appalled by Level of Torture and Ill-Treatment in Papua New Guinea, Calls on International Donor Community to Act

In May 2010, the UN Special Rapporteur on Torture, Professor Manfred Nowak, conducted a country mission to Papua New Guinea.  Following the visit, the independent and highly regarded international law expert expressed serious concern about widespread and grave human rights violations, including:

• a high level of crime and violence;
• entrenched gender discrimination, with ‘women in Papua New Guinea holding a very low status in society, placing them at a very high risk of abuse both in the domestic and in the public sphere’;
• evidence of systematic torture and ill-treatment in places of detention, including detention in ‘overcrowded, filthy cells, without proper ventilation, natural light or access to food and water’;
• evidence of excessive use of force by law enforcement and correctional authorities, and further evidence of ‘a high level of corruption and unprofessionalism’ among these authorities;
• ‘insufficient or totally non-existent’ access to ‘medical care in detention facilities’; and
• a weak commitment to the rule of law and a culture of impunity, stemming from a ‘lack of effective complaints mechanisms, independent investigation and monitoring and similar safeguards’.

Having regard to these findings, the Special Rapporteur recommended that ‘the international donor community considers the protection of human rights in the criminal justice system, and in particular the prevention of torture, as the highest priority.’

This recommendation is particularly apposite to Australia, which is currently reviewing the PNG-Australia Development Cooperation Treaty.  This review is a significant opportunity for Australia to enhance aid effectiveness, demonstrate leadership on human rights in the Asia-Pacific, and contribute to the realisation of human rights in PNG in practical and effective ways.

The Special Rapporteur’s report is at www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=10058&LangID=E.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

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National Human Rights Framework Developments

Parliamentary Scrutiny of Human Rights to be Strengthened with New Bill

On 2 June 2010, the Attorney-General introduced the Human Rights (Parliamentary Scrutiny) Bill 2010, a key element of the Government’s new ‘Human Rights Framework’, in the House of Representatives.  The Bill was subsequently referred to the Senate Legal and Constitutional Committee for inquiry and report.  The Human Rights Law Resource Centre welcomes the Bill and supports its expeditious passage.

The Bill establishes a Joint Parliamentary Committee on Human Rights, to be comprised of five members of the House of Representatives and five Senators, with two primary functions:

• first, to examine Bills, legislative instruments and existing Acts ‘for compatibility with human rights and to report to both Houses of Parliament on that issue’; and
• second, to inquire into ‘any matter relating to human rights which is referred to it by the Attorney-General, and to report to both Houses of Parliament on that matter’.

The Bill also introduces a requirement that each new Bill introduced to parliament be accompanied by a Statement of Compatibility which includes an ‘assessment of whether the Bill is compatible with human rights’.  For the purposes of both the Joint Committee and Statements of Compatibility, ‘human rights’ means those human rights and fundamental freedoms contained in the seven core international human rights treaties to which Australia is party.

The legislation gives effect to the finding of the National Human Rights Consultation Committee that:

Greater consideration of human rights is needed in the development of legislation and policy and in the parliamentary process in general.  The primary aim of such consideration is to ensure that human rights concerns are identified early, so that policy and legislation can be developed in ways that do not impinge on human rights or, in circumstances where limitations on rights are necessary, those limitations can be justified to parliament and the community.

The UN Human Rights Committee – a body of independent international human rights experts – has similarly recently recommended that Australia establish a mechanism to consistently ensure the compatibility of domestic law with the International Covenant on Civil and Political Rights and establish appropriate procedures to implement views of the Committee in individual cases.

Consistent with these findings and recommendations, in introducing the legislation, the Attorney-General stated the purpose of the measures is to ‘improve parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development’.

Details of the Bill and the Senate committee inquiry are at www.aph.gov.au/senate/committee/legcon_ctte/human_rights_bills/index.htm.

The HRLRC’s submission to the inquiry is at www.hrlrc.org.au/content/topics/national-human-rights-consultation/submission-to-senate-inquiry-into-human-rights-parliamentary-scrutiny-bill-2010/.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

Australia Defers Human Rights Act but Calls for Better Legal Protection of Human Rights Abroad

Despite ruling out the enactment of a Human Rights Act in Australia, the Government has recently pressed a number of countries abroad to improve the legal protection of human rights in their home jurisdictions.

In official interventions at the 8th Session of the UN Human Rights Council Universal Periodic Review, Australia called on:

• Lesotho to ‘incorporate international human rights instruments into domestic law, including the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Elimination of Discrimination Against Women, and the Convention on the Rights of the Child’ (5 May 2010); and
• Kiribati to ‘ensure human rights are afforded full legal protection in Kiribati’ (3 May 2010).

A range of UN human rights treaty bodies and Special Rapporteurs have consistently called on Australia to enact comprehensive legal protection of international human rights obligations in domestic law.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

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Victorian Charter of Rights Developments

Statements of Compatibility under the Victorian Charter

Section 28 of the Charter of Human Rights and Responsibilities requires a Statement of Compatibility to be issued for every Bill that is introduced into a House of Parliament.

Below is an analysis of recent significant Statements.

Control of Weapons Amendment Bill 2010

The Control of Weapons Amendment Bill 2010 will amend the Control of Weapons Act 1990 (Vic) by:

• creating the offences of (i) selling a weapon to a child and (ii) for a child buying a weapon;
• allowing for infringement notices to be issued for certain offences to people over the age of 16 and for weapons to be confiscated and disposed of; and
• relaxing the requirements for police to conduct searches by:
  • removing the requirement for police to keep records of searches, except for strip searches;
  • allowing for planned and unplanned designations of search areas to be made even if the likelihood of violence is not ‘more likely than not’;
  • extending the circumstances that can trigger a designation from ‘violence or disorder involving weapons’ to ‘unlawful possession, carriage or use of weapons’;
  • allowing designations relating to specific events to continue for the entire duration of the event;
  • requiring an independent person to be present during searches of children and people with impaired intellectual functioning only if practicable; and
  • modifying rules relating to exemptions for certain weapons.

The amendments will be automatically repealed after 3 years.

The SOC issued by the Minister for Police and Emergency Services identifies the following Charter rights which are affected by the Bill:

Increased police powers

The Bill will make it significantly easier for areas to be designated for the purposes of searches.  The result of a designation is that police can conduct random searches, which engages the right to privacy under s 13 of the Charter.

The Bill will also relax the requirements with which police are required to comply when conducting searches.  This is likely to increase the degree of intrusion in people’s privacy as a result of those searches.

Both of these sets of amendments are likely to significantly infringe the right to privacy, over and above the imposition caused by previous amendments in 2009.

The SOC for the 2009 amendments, which introduced a first round of expanded police powers, concluded that the amendments were incompatible with the right to privacy under s 13 of the Charter.  The new SOC reaffirms that incompatibility and admits that it will be exacerbated.

However, the Victorian Government has indicated that it still wants to proceed with the amendments.  It asserts that the public’s concern about crimes involving knives and other weapons has not abated, despite the strengthening of police powers by the previous amendments.

The Act already allows the police to detain people for the purposes of searches.  The SOC states that because the powers of detention are strictly confined to what is necessary to conduct an authorised search, no separate question of incompatibility arises.  To the extent that the search powers are arbitrary and incompatible with s 13, the deprivation of liberty is also arbitrary, and to the extent that the Bill exacerbates the incompatibility with s 13, it will exacerbate the incompatibility with the right not to be subjected to arbitrary detention under s 21 of the Charter.

The SOC does not address the impact of infringement notices which can be issued under the Act for first offences, although the penalties range up to $2000, or the fact that weapons can be confiscated if the fine is not contested in court.

Searches of children and offences relating to children

The Bill relaxes the requirement for an independent person to be present for searches of children (and people with an intellectual disability) in unplanned searches to situations where this is practicable.  The SOC acknowledges that the Bill exacerbates the incompatibility of the Act with the right of children to be protected (s 17(2)).  The government believes these powers are necessary for prevention and deterrence, including the protection of children.

The SOC also acknowledges that the Bill infringes the right to freedom from discrimination (s 8(3)) by making it an offence to sell weapons to children.  However in the Minister’s opinion, this is demonstrably justified within the meaning of s 7(2).

Conclusion of partial incompatibility

The SOC concludes that the Bill is partially incompatible with the charter but that it is ‘ultimately in the best interest of the community’.

Alex Bowen, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

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Victorian Charter Case Notes

Victorian Supreme Court Adopts Narrow View of Right to Privacy and Eschews International Jurisprudence

WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010)

This case raises the rights to privacy (s 13) and freedom from retrospective punishment (s 27), interpretation of legislation (s 32) and declarations of inconsistency (s 36) under the Charter.

Summary

In August 2007, the Chief Commissioner advised the plaintiff, WBM, that his name had been placed on the Victorian Sex Offenders Registry under the Sex Offenders Registration Act 2004 (Vic) (‘Act’).  WBM applied to the Supreme Court for a declaration that he is not a registrable offender under the Act and an order to the Chief Commissioner to remove his name.  Alternatively, WBM sought a declaration of inconsistent interpretation in respect of the relevant sections of the Act under s 36(2) of the Charter.

WBM argued, among other things, that the registration was an arbitrary interference with his privacy and constituted a retrospective penalty.

The Court’s findings in relation to the Charter may be questioned on three issues: first, the Court appeared to equate the making of a declaration of inconsistency under s 36 with judicial policy making; second, the Court failed to properly apply s 32 to consider international jurisprudence; and third, the Court defined ‘arbitrary’ in an overly narrow fashion in relation to the right to privacy and failed to follow internationally settled authority on s 13.

Facts

In April 2003, WBM pleaded guilty to property and possession and production of child pornography offences and was given an aggregate 12-month imprisonment sentence, suspended for two years.  He did not breach that order and it ceased on 21 April 2005.

The Act commenced on 1 October 2004, being after WBM was sentenced but before his suspended sentence ended.  The Act defines a registrable offender to be a person who immediately before 1 October 2004 is ‘serving a sentence of imprisonment (in this case, for possession or making child pornography) that was wholly or partly suspended and who is in the community in accordance with that sentence’.

WBM argued that he did not fall within this definition; that he was not serving a sentence before 1 October 2004 and that the Act did not apply to an aggregate sentence imposed for offences unrelated to the Act.  The Court did not accept these submissions and found WBM to be a registrable offender within the meaning of the Act: [31].

In the alternative, WBM had argued that if he was a registrable offender, the Court should make be a declaration of inconsistent interpretation: s 36(2) of the Charter.

Application of the Charter

WBM argued that the definition of ‘existing controlled registrable offender’ under the Act is inconsistent with the right not to be subjected to unlawful or arbitrary interference with privacy (s 13) and not to be subjected to a retrospective penalty (s 27): [33].

Making a declaration of inconsistency – s 36

The Court commenced its analysis by correctly noting that a declaration of inconsistency would not immediately affect the operation or application of the Act in respect of WBM or ‘vindicate or protect’ his rights: [34] and s 36(5) of the Charter.  While legally correct, this fails to recognise the important symbolic significance a declaration of inconsistency can have.  It is a judicial statement that legislation has or may breach a relevant human right.  Where the facts of this case involve the humiliation involved in being registered and the sense of injustice at double punishment, a declaration does have a role to play in protecting and promoting human rights trough vindication.

The Court continued by outlining the principles of separation of powers and the judiciary’s role to interpret and apply the laws as enacted by Parliament rather than be (or be seen to be) involved in legislative activity or policy making: [44].  This discussion gave context to the Court’s obvious reluctance to invoke s 36 of the Charter.  With all due respect, the Court erred in perceiving the making of a declaration to amount to ‘judicial policy making’ [47].  While the Charter does not ‘license’ or justify such policy making, Parliament protected separation of powers by empowering the courts to make a declaration of inconsistency without indicating how the inconsistency is to be resolved, a function preserved for Parliament in responding to the declaration.  The mere making of a declaration is not to be seen as judicial policy-making, rather the exercise of the judicial function in applying s 36 of the Charter.

Privacy – s 13

WBM argued that the way in which the Act applied was arbitrary, submitting in particular that the reporting conditions of the Act, together with its retrospective application to WMB, constituted an ‘arbitrary interference’ with WMB’s right to privacy.  He submitted that ‘in order to be an arbitrary interference under s 13 of the Charter, the interference must contain elements of inappropriateness, injustice and lack of predictability’: see also Nolan v MBF Investments Pty Ltd [2009] VSC 244 and Bell J in Kracke v Mental Health Review Board [2009] VCAT 646.

The Court distinguished Kracke and held that the common usage of arbitrary is consistent with its Oxford English Dictionary’s definition, being an action not based on any identifiable criterion but stemming from caprice or whim.  The Court declined to follow relevant international jurisprudence on s 13, in particular from the UN Human Rights Committee.  It stated that the Human Rights Committee’s General Comment 16 did not accord with the plain meaning of arbitrary and as a non-judicial body comprising members from countries with different systems of democracy to Australia, its views were to be treated with care.  Further, the Court stated that if the right to privacy required an interference to be reasonable in the circumstances and proportionate, this would involve unwarranted judicial policy-making.

This approach side-stepped the direction in Charter s 32(1) and 32(2) to explore all possible interpretations of the provision in question, and adopt that interpretation which least infringes Charter rights (R v Momcilovic [2010] VSCA 50, [103]) and to consider international jurisprudence.  Section 32 is relevant to the interpretation of the Charter itself, including s 13.  The Court’s deference to the dictionary definition is inconsistent with s 32(2), international jurisprudence and the Charter Explanatory Memorandum’s recognition that s 13 is based on the protection of the right to privacy in art 17 of the ICCPR.  Article 17 of the ICCPR has a well-settled definition of arbitrary set out in General Comment 16 that incorporates a proportionality analysis.  Parliament’s adoption in s 13 of the language of art 17 of the ICCPR indicates its intention that the meaning accorded to art 17 be given to s 13.

The Court’s emphasis on separation of powers and considering jurisprudence only from countries with similar systems of government resulted in a narrow interpretation of s 13, a failure to grapple with and apply s 32(2) and a reluctance to invoke s 36.

The decision is at www.austlii.edu.au/au/cases/vic/VSC/2010/219.html.

Phoebe Knowles is a barrister at the Victorian Bar

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Comparative Law Case Notes

Administrative Tribunals have Jurisdiction and Duty to Consider Human Rights Issues

R v Conway, 2010 SCC 22 (11 June 2010)

The Supreme Court of Canada has held that administrative tribunals with the authority to apply the law, have the jurisdiction to apply the Charter to the issues that arise in the proper exercise of their statutory functions.  It has further confirmed that tribunals should play a primary role in determining Charter issues that fall within their specialized jurisdiction and that, in exercising their statutory functions, administrative tribunals must act consistently with the Charter and its values.

Facts

Paul Conway is a 56 year old man who, at the age of 30, was found not guilty of sexual assault with a weapon by reason of insanity.  Since that verdict, Mr Conway has been detained in mental health facilities across Ontario and been diagnosed with a number of mental disorders.

At his annual review hearing by the Ontario Review Board in 2006, Mr Conway argued that there had been little regard for his living conditions in detention and this was negatively impacting on his mental and physical health.  He further argued that his treatment and conditions of detention infringed his rights to liberty, safety, dignity and security of person under the Canadian Charter of Rights and Freedoms and that these violations resulted in him not being able to benefit therapeutically from the mental facility.

On this basis, Mr Conway sought an absolute discharge under s 24(1) of the Canadian Charter which provides:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Following the review hearing, the Review Board found Mr Conway was still a threat to public safety who, if released, would quickly return to police and hospital custody and was, as such, not a suitable candidate for an absolute discharge.

In ordering Mr Conway to remain in detention, the Review Board did not consider whether any of Mr Conway’s Canadian Charter rights had been breached as it did not consider it had jurisdiction to consider those claims.

Mr Conway appealed the Review Board’s decision.

Decision

The Supreme Court of Canada unanimously held that the Review Board was a court of competent jurisdiction under the Canadian Charter and could grant remedies under s 24(1).  According to the Court:

administrative tribunals with the authority to decide questions of law and whose Charter jurisdiction has not been clearly withdrawn have the corresponding authority — and duty — to consider and apply the Constitution, including the Charter, when answering those legal questions.

The Court stated that Canada does not have one Charter for the courts and another for administrative tribunals.  Instead, it is recognised there are practical advantages and constitutional bases for allowing Canadians to assert their Canadian Charter rights in the most accessible forum available, without the need for dividing proceedings between superior courts and administrative tribunals.  In this regard, the Court stated that:

The denial of early access to remedies is a denial of an appropriate and just remedy…And a scheme that favours bifurcating claims is inconsistent with the well-established principle that an administrative tribunal is to decide all matters, including constitutional questions, whose essential factual character falls within the tribunal’s specialized statutory jurisdiction

In exercising their statutory discretion, tribunals must both comply with the Canadian Charter and play a primary role in the determination of Canadian Charter issues falling within their specialised jurisdiction.

Accordingly, when a remedy is sought from an administrative tribunal under s 24(1), the first inquiry is whether the tribunal can grant Canadian Charter remedies generally.  To do this, it is necessary to begin by determining whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law.  If it does, the tribunal is a court of competent jurisdiction and can consider and apply the Canadian Charter when resolving matters properly before it (unless it is clear that the legislature intended to exclude the Canadian Charter from the tribunal’s jurisdiction).

In Mr Conway’s case, the Review Board is a quasi-judicial body which is unquestionably authorised to decide questions of law for two reasons: (1) it operates as a specialised statutory tribunal with ongoing supervisory jurisdiction over persons found not criminally responsible; and (2) its decisions may be appealed on questions of law and fact thereby indicating it has power to decide legal questions.  Accordingly, the Review Board is a court of competent jurisdiction which can grant Canadian Charter remedies generally.

The second inquiry, once this threshold question has been answered in favour of Canadian Charter jurisdiction, is whether the tribunal can grant the particular remedy sought in light of the relevant statutory scheme.  This requires a consideration of legislative intent.

In Mr Conway’s case, it would be inconsistent with Parliament’s intent if the Review Board was entitled to grant Mr Conway an absolute discharge despite its view he was dangerous to society.  This is because the Review Board is obliged to protect public safety and its statutory authority to grant absolute discharges only extends to non-dangerous not criminally responsible patients.  Therefore, despite being a court of competent jurisdiction generally, the Board in this case could not grant the remedy sought by Mr Conway.

Relevance to the Victorian Charter

This decision supports the conclusion that administrative tribunals, such as VCAT, have jurisdiction to hear and determine Victorian Charter issues that properly arise in a matter: see also Director of Housing v Sudi [2010] VCAT 328.  If this was not the case, there would be anomalous situation where a tribunal responsible for interpreting the law on the issue was unable to deal with the issue in its entirety, which is impractical, inappropriate and inconsistent with the interests of access to, and the administration of, justice.

The decision is at http://www.canlii.org/en/ca/scc/doc/2010/2010scc22/2010scc22.html.

Susanna Kirpichnikov is a lawyer with Lander & Rogers

Obligation of Public Authorities to Provide Accommodation and Support to Destitute Family

Birmingham City Council v Clue [2010] EWCA Civ 460 (29 April 2010)

In this case, the England and Wales Court of Appeal held that the Birmingham City Council’s refusal to provide financial assistance and accommodation to a family while their immigration application was pending resulted in a breach of the family’s right to respect for family and private life under art 8 of the European Convention of Human Rights.

Facts

Amalea Clue and her eldest daughter were Jamaican nationals.  They were granted leave to enter the United Kingdom as visitors for six months in 2000.  Ms Clue’s later application for leave to stay in the UK as a student was dismissed on appeal in March 2003.  Ms Clue remained in the UK and had three children with her British partner.  No steps were taken to remove Ms Clue or her children and they were supported by her partner until 2007 when the relationship broke down.

In October 2007, Ms Clue applied to the UK Border Agency (‘UKBA’) for indefinite leave for herself and her four children to remain in the UK.  This application relied on the Secretary of State for the Home Department’s Policy DP 5/96, which provided that, where the child of a family had lived in the UK for seven years or more, there was a presumption that indefinite leave to remain would only be refused in exceptional cases.  The UKBA withdrew DP 5/96 in December 2008, but it was in effect at the time of Ms Clue’s application and was therefore relevant to her case.

While Ms Clue’s application for indefinite leave to stay in the UK was pending, she applied to the Council for financial assistance under s 17 of the Children Act 1989.  Under s 17, every local authority has a general duty to safeguard and promote the welfare of children within their area by providing appropriate services (including accommodation and financial or in-kind assistance).

However, under the Nationality, Immigration and Asylum Act 2002 (‘NIA Act’), however, a person is not eligible for assistance under s 17 of the Children Act if he or she is in the UK in breach of immigration laws (and is not an asylum seeker) (‘Withholding Support Provision’).  Importantly, the Withholding Support Provision does not prevent a local authority exercising a power or performing a duty where doing so is necessary to avoid a breach of a person’s rights under the Convention.

On 14 August 2008, the Council provided a written assessment to Ms Clue’s lawyers, stating that financial support and assistance would not be provided to Ms Clue under the Children Act.  The assessment found that the Council’s refusal to provide support and accommodation would not breach Ms Clue and her children’s rights under the Convention, including:

• the right to respect for private and family life and home under art 8 – because Ms Clue and her children were able to return to Jamaica ‘where they could continue to enjoy a family life’; and
• the right not to be subjected to torture or inhuman or degrading treatment or punishment under art 3 – because the Council was ‘confident that the welfare of children in Jamaica is sufficiently protected’.

Ms Clue applied for judicial review of the Council’s decision and the High Court upheld the challenge.  The Council was granted leave to appeal to the Court of Appeal.  The Secretary of State was added as an interested party and Shelter UK intervened in the case.

In October 2009, Ms Clue and her family were granted indefinite leave to remain in the UK by the UKBA, but the appeal proceeded because of its significance to future decisions by the Council.

Decision

The Court dismissed the appeal and rejected the Council’s human rights assessment in relation to Ms Clue’s request for assistance.

It held that, in determining whether withholding assistance would cause a breach of Ms Clue and her children’s rights under the Convention, the Council should have considered the right to family life and private life as ‘two distinct rights’, with private life encompassing broader considerations such as relationships and social and cultural ties.  The Council’s failure to provide support in a way that prevented these social and cultural ties from being broken (by requiring the family to return to Jamaica) would result in a breach of art 8 of the Convention.

Scope of the right to private life

Citing the Grand Chamber of the European Court of Human Rights in Uner v The Netherlands (2007) 45 EHRR 14, the Court held that, in addition to ‘family life’, art 8 of the Convention protects ‘the right to establish and develop relationships with other human beings and the outside world … and can sometimes embrace aspects of an individual’s social identity’.  The Court also cited the finding in Uner that the concept of private life encompasses the ‘totality of social ties’ and the expulsion of a settled migrant may therefore constitute an interference with their rights under art 8 ‘regardless of the existence or otherwise of a family life’.

Relevant considerations for local authorities

The Court identified the following features as being key to Ms Clue’s circumstance:

• she was unlawfully present in the UK (within the meaning of the NIA Act);
• she was destitute and would (if not for the Withholding Support Provision), have been eligible for support under the Children Act; and
• she had made an application to the Secretary of State for leave to remain, which expressly or implicitly raised grounds under the Convention.

The Court identified two steps in a local authority’s consideration of the extent to which it is necessary to exercise a power or perform a duty to avoid a breach of a person’s rights under the Convention:

• First, would withholding assistance cause a person to suffer from destitution amounting to a breach of his or her rights under the Convention (including under art 3)?  This involves consideration of what other sources of accommodation and support are available to the claimant.
• Second, if adequate assistance is not otherwise available to prevent the claimant’s destitution, is there an impediment to the claimant returning to their country of origin?

The Court stated that, where there is a practical impediment to return (for example, that the person cannot fund their return), it will be open to the local authority to avoid a breach of the person’s rights by funding his or her return (such as flights and short term accommodation).

Where the barrier is legal, in that return would result in a breach of the person’s rights under the Convention, the local authority’s obligations will depend on whether the person has applied for leave to remain in the UK or not.

(a) No application for leave to remain

By way of obiter, the Court stated that, in considering whether art 8 is a barrier to returning a person to their country of origin, the local authority will need to:

• consider whether he or she enjoys a private or family life in the UK under art 8(1); and
• if such a private or family life is enjoyed, consider whether returning the person to their country of origin would interfere with this right.

While it will depend on the facts in each case, the Court stated that, prima facie, requiring the return of a family (particularly where children have spent their formative years in the UK) amounts to interference with their right to private life.

(b) Application for leave to remain

The Court then considered what the obligations of the Council were, given that Ms Clue had made an application for leave to remain in the UK based expressly or implicitly on Convention grounds.  In this context, the Court emphasised the distinction between the social services functions of a local authority and the immigration functions of the Secretary of State.

The Court found that the Council’s decision not to provide Ms Clue with support, effectively determined her application for leave to remain by making it impossible for her to stay in the UK.  The Court held that, when applying the Withholding Support Provision, a local authority should not consider the merits of an outstanding application for leave to remain, beyond the question of whether the application is ‘obviously hopeless or abusive’.  Provided the application is not hopeless or abusive:

a local authority which is faced with an application for assistance pending the determination of an arguable application for leave to remain on Convention grounds, should not refuse assistance if that would have the effect of requiring the person to leave the UK by forfeiting his claim.

Balancing rights against resource constraints

Article 8(2) of the Convention provides that interference by a public authority with a person’s personal or family life will be permissible only where it is ‘in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.

The Council asserted that art 8(2) of the Convention required the Council to weigh Ms Clue and her children’s rights to private and family life against the pressures on its budget by others who needed their rights protected.  In response, the Court held that, where a person has an application for leave to remain on foot, the financial considerations of the local authority are irrelevant.  The Court noted that, if this was not the case, application of law and policy would be arbitrary and unfair, in that a person’s immigration application could be effectively rejected on the basis of a local authority’s budgetary constraints.  The Court made a clear statement:

local authorities may not invoke article 8(2) by reference to budgetary considerations and the rights of others if the effect of so doing will be to require an applicant to return to his country of origin and thereby forfeit his claim for indefinite leave to remain.

If, however, a person does not have an outstanding application for leave to remain, the Court stated that the local authority is entitled to have regard to demands on its budget when identifying whether an interference with a person’s rights to family and private life would be justified and proportionate within the meaning of art 8(2) of the Convention.

The Court acknowledged that the tension in this case was caused in large part by the significant delays in the Secretary of State’s processing of applications for leave to remain and the failure of government to provide local authorities with sufficient resources to support people with pending applications.  In response, the Secretary of State and the UKBA both made statements that policy changes had been made so that applicants who were supported by local authorities would be prioritised, having regard to the need to safeguard and promote the welfare of children in the UK.

Relevance to the Victorian Charter

This case is particularly relevant to the scope of the rights to family and privacy under s 13(a) of the Victorian Charter.

Although not identical to the rights under s 13(a) of the Charter, the UK Court’s interpretation of the right to family and private life under art 8 of the Convention as ‘two distinct rights’ is relevant in a Victorian context.  In particular, the Court stated that ‘[t]he right to private life entails considerations far wider than the right to family life … private life includes relationships and the social, cultural as well as the family ties that a person forms’.  This broad interpretation of the right to private life is particularly relevant to marginalised persons who are disconnected from traditional family networks.   

The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/460.html.

Lucy Adams is a lawyer with the PILCH Homeless Persons’ Legal Clinic

Threat of Torture during Interrogation Amounts to Inhuman Treatment

Gafgen v Germany [2010] ECHR 759 (1 June 2010)

The Grand Chamber of the European Court of Human Rights has found, by majority, that a threat of torture amounted to inhuman treatment, but was not sufficiently cruel to amount to torture within the meaning of the European Convention on Human Rights.  The Court also considered that the applicant remained a victim of the violation, despite limited remedial actions taken by the State party.  Further, it held that the applicant had been afforded a fair trial, because his confessions obtained by way of the breach had been excluded from evidence, even though real evidence obtained as a result of the confession evidence was not excluded.

Facts

On 27 September 2002, Magnus Gafgen, the applicant, lured the eleven year old son of a wealthy family into his flat and suffocated him.  He then sent a ransom note to the boy’s parents, claiming the boy was still alive and demanding one million euros.

Three days later Gafgen collected the ransom money.  He was apprehended later that day at Frankfurt airport.  During the arrest the police pinned him to the ground, causing shock and minor lesions.

Gafgen was taken to the police station for questioning.  He was advised of his rights, including the right to remain silent and consult a lawyer.  He was then questioned in an attempt to discover his victim’s whereabouts.  He had a thirty minute consultation with a lawyer.  He subsequently indicated that two other people had kidnapped the boy and hidden him in a hut by a lake.

Early on 1 October 2002, having failed to elicit the boy’s whereabouts, Mr Daschner, Deputy Chief of Frankfurt Police, ordered an officer, Mr Ennigkeit, to threaten Gafgen with the infliction of considerable pain if he did not reveal the boy’s whereabouts.  Daschner had previously ordered other officers to do so but they had refused.  Ennigkeit, however, made the threats.  Within ten minutes Gafgen revealed he had killed the boy and disclosed the whereabouts of his body.  Gafgen was then driven to the location of the body.

Immediately afterwards Daschner wrote a statement admitting that, in the belief that the child was still alive and in danger, he had ordered that Gafgen be threatened with considerable pain which would not leave any injuries.  He confirmed that the treatment would be carried out under medical supervision.  He had also ordered another police officer to obtain a ‘truth serum’ to be administered to Gafgen.  Because Gafgen had revealed that the boy was dead and where his body was, these threats had not been carried out.

Gafgen claimed he had been physically assaulted and threatened with being sexually abused during the interrogation.  He also claimed he was made to walk to the location of the boy’s body barefooted.

While there was some evidence of bruising, lesions and closed blisters on Gafgen’s feet, the Court found that his allegations of physical abuse were not proven beyond reasonable doubt, because the medical evidence could have supported a finding that the injuries occurred during the arrest.

The Court found that Gafgen had been threatened as described in Daschner’s statement.

Decision

Inhuman treatment

The Court found that, while ‘the fear of physical torture may itself constitute mental torture’, the threat in this case was ‘sufficiently serious to amount to inhuman treatment prohibited by Article 3, but…did not reach the level of cruelty required to attain the threshold of torture’.

Redress

It was held that sufficient redress for a violation of art 3 would be ‘a thorough and effective investigation capable of leading to the identification and punishment of those responsible’ as well as ‘an award of compensation…where appropriate’.

The majority held that the investigation of the responsible officers had been appropriate, but their punishment of suspended sentences and fines was ‘manifestly disproportionate to a breach of one of the core rights of the Convention’, and did not ‘have the necessary deterrent effect’.  However, a minority of judges said it was not the Court’s role to question the domestic court’s decision as to appropriate criminal punishments.

The majority also criticised the domestic courts for not considering the merits of the applicant’s compensation claim, after three years.

Because Gafgen had not had sufficient redress, it was held that he remained a victim of the violation of art 3.

Right to a fair trial

The applicant claimed that he was a victim of a breach of art 6, which guarantees the right to a fair trial.  The basis of this claim was that, while his admissions under threat had been excluded from evidence during the domestic trial, the real evidence discovered as a result of those admissions was admitted.  The majority noted prior decisions that ‘incriminating real evidence obtained as a result of acts of violence, at least if those acts had to be characterised as torture, should never be relied on as proof of the victim’s guilt, irrespective of its probative value.  Any other conclusion would only serve to legitimise, indirectly, the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe’.

The Court noted the competing rights and interests at stake, the potential that the real evidence would have been discovered anyway and the fact that the applicant gave two confessions at trial after having been advised that his previous confessions were inadmissible.  It observed that art 6, unlike art 3, did not enshrine an absolute right, although acknowledging that ‘the admission of evidence obtained by conduct absolutely prohibited by art 3 might be an incentive for law-enforcement officers to use such methods notwithstanding such absolute prohibition’.

However, the majority concluded that:

it was the applicant’s second confession at the trial which – alone or corroborated by further untainted real evidence – formed the basis of his conviction for murder and kidnapping with extortion and his sentence.  The impugned real evidence was not necessary, and was not used to prove him guilty or to determine his sentence.  It can thus be said that there was a break in the causal chain leading from the prohibited methods of investigation to the applicant’s conviction and sentence in respect of the impugned real evidence.

It was therefore held that the failure to exclude the real evidence had not denied the applicant his right to a fair trial.

This decision was criticised in minority judgments on the basis that it:

• weakens the absolute nature of art 3 of the Convention;
• provides an incentive for law enforcement officers to violate art 3; and
• is nonsensical in its finding that real evidence obtained by way of inhuman treatment could be admitted if it was not the basis on which the accused is convicted, because such evidence would, as a matter of logic, be irrelevant.

Damages

The applicant did not claim any award of compensation, he only sought a retrial.  This application was denied on the basis that his art 6 rights had not been violated.

Relevance to the Victorian Charter

Section 10 of the Victorian Charter provides a right to be free from torture and cruel, inhuman or degrading conduct.  This case underlines that this right is absolute and non-derogable, even in cases of extreme pressure or emergency.  It also demonstrates that even relatively low level threats may violate this right.

However, this case may provide a basis upon which the absolute nature of the right under s 10 can be weakened.  While it held that it would be a violation of the right to a fair trial to admit into evidence in a criminal trial admissions obtained by way of a violation of the right to be free from torture and inhuman treatment, it allowed real evidence, obtained by way of that violation, to be admitted.  This may be able to be used to base an argument for admission of evidence, obtained in such a way, where a Victorian court is undertaking a balancing exercise with regards to such evidence under s 138 of the Evidence Act 2008 (Vic).  This would weaken the right to redress afforded to a victim of a violation of s 10 and would also provide incentive for law enforcement officers to engage in violations of s 10, if they believe that admissible real evidence might be obtained. As a result, it may also serve to weaken the nature of the right to a fair hearing provided under s 24 of the Charter.

The decision is available at www.bailii.org/eu/cases/ECHR/2010/759.html.

Megan Fitzgerald, Lawyer, Lander & Rogers, on secondment to the Human Rights Law Resource Centre

Conviction for War Crimes Not a Violation of the Prohibition against Punishment without Law

Kononov v Latvia [2010] ECHR 667 (17 May 2010)

The Grand Chamber of the European Court of Human Rights considered whether criminal law was retrospectively applied to convict Mr Kononov, in violation of art 7 of the European Convention of Human Rights.

The Grand Chamber had to assess whether, at the time of the offence, international law provided a legal basis to convict Mr Kononov for war crimes and, furthermore, whether he could he have foreseen that his actions would make him guilty of those offences.  Unless both tests were satisfied, the conviction would contravene art 7. The Grand Chamber also considered how the extension of statutory limitations should be treated under Article 7.

Facts

As a commanding officer in the Soviet Army in 1944, Mr Kononov and his unit brutally murdered nine Latvian villagers and burned down their houses and farm buildings.  In 2004, the Latvian Criminal Affairs Division convicted Mr Kononov of offences contrary to Article 68-3 of the 1961 Criminal Code.  This provision states:

Any person found guilty of a war crime as defined in the relevant legal conventions…shall be liable to life imprisonment or to imprisonment for between three and fifteen years.

The ‘relevant legal conventions’ are the Hague Convention 1907, the Geneva Convention (IV) 1949 and the Protocol Additional to that Convention 1977.  Also relevant was Article 45-1 of the 1961 Code, which specifies that no statutory limitation applies to war crimes.

At the time of the offence, however, the applicable law was the 1926 Criminal Code of Soviet Russia.  War crimes were not offences under that code, which also contained a 10 year statutory limitation for criminal prosecutions.  Mr Kononov appealed on the basis that Articles 68-3 and 45-1 had been retrospectively applied to convict him, in violation of art 7 of the Convention.  That article relevantly says:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

Decision

Majority

The majority of the Grand Chamber affirmed that the guarantee against retrospective criminal liability is ‘an essential element of the rule of law’ (at 185) and should be applied to protect against arbitrary conviction and punishment.  Article 7 embodies the principles that a crime and its penalty can only be defined and prescribed by law, and that the criminal law should not be broadly construed against an accused.  Article 7 therefore requires that the law clearly define an offence.

An offence will be clearly defined in law if it can be known from the wording of a provision (and judicial interpretation and legal advice) which acts or omissions attract criminal liability.  A law can be written or unwritten, but must be accessible and foreseeable.  Gradual clarification of the criminal law through judicial interpretation is not caught by art 7, as long as it is consistent with the essence of the offence and is reasonably foreseeable.

Turning to Mr Kononov’s case, the majority of the Grand Chamber said that Article 68-3 was based on international, not national law.  It was therefore irrelevant that war crimes were not domestic offences at the time.  After assessing the state of international law on 27 May 1944, the majority held that it provided a sufficiently clear legal basis to convict Mr Kononov for war crimes.

Furthermore, as Mr Kononov was a commanding military officer, it should have been foreseeable that his actions would constitute war crimes for which he could be criminally prosecuted.  Interestingly, the majority held this despite noting that the relevant international laws and customs were not published in the USSR or the Latvian SSR at the time.

The majority also held that, as Mr Kononov was convicted under international law, the statutory limitation under the 1926 Criminal Code did not apply.  At the time of the offence, international law did not prescribe a time limit for the prosecution of war crimes.  Nor have subsequent developments introduced such limits.  Therefore the conviction was not statute barred.

Accordingly, as Mr Kononov was convicted of an offence that was a crime under international law at the time it was committed, art 7 was not violated.

Concurring opinion

In a joint concurring opinion, four judges departed from the reasoning of the majority on the statutory limitation issue.  They preferred to see it as a procedural issue relevant to fairness of proceedings and art 6 of the Convention, rather than art 7.  They held that the belated conviction of Mr Kononov on the basis of laws existing at the time involved no question of retrospective application of substantive law.

It is questionable which is the better approach.  On a literal reading, art 7 is concerned solely with whether an act or omission constituted an offence at the time it was committed.  It is not concerned with whether prosecution of the offence was subsequently statute barred.  However, as the majority pointed out, art 7 should be construed broadly to protect against arbitrary conviction and punishment.  Therefore, it is arguable that the courts should read into it a prohibition on the arbitrary extension of time limits for criminal prosecution.

Dissenting opinion

The dissenting opinion by three judges disagreed with the majority on the factual question as to whether international law at the time provided a sufficiently clear legal basis for Mr Kononov’s conviction.  They also held that the prosecution was statute barred under the 1926 Criminal Code.  The overriding of this limitation by Article 45-1 of the 1961 Criminal Code involved the retrospective application of the criminal law in contravention of art 7.  As discussed above, it is debatable whether art7 should apply to time limits on prosecution.

Relevance to the Victorian Charter

The guarantee in art 7 is substantively the same as the protection against retrospective criminal laws in s 27 of the Victorian Charter.  Specifically, s 27(1) says that a person ‘must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in’.  Section 27(4) says that the section does not affect acts or omissions that were criminal offences under international law at the time.

Kononov’s case adds to the jurisprudence on this fundamental protection.  In particular, it should guide Australian courts in determining whether an act or offence was a criminal offence under international law at the time it was committed.  The proper approach in such cases is firstly to determine whether an offence was clearly defined by international law at the time.  It must then be assessed whether the law was sufficiently accessible and foreseeable.  This will be satisfied if an accused could reasonably have been expected to know that their actions would make them criminally liable.

The decision is at www.bailii.org/eu/cases/ECHR/2010/667.html.

Marc Fauvrelle, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

Right to Privacy and the Interception and Surveillance of Communications

Kennedy v United Kingdom [2010] ECHR 682 (18 May 2010)

Whilst specific breaches of the European Convention of Human Rights were not ultimately upheld, this case provides insight into the application and scope of the right to privacy enshrined in art 8 of the Convention.  Furthermore, the European Court of Human Rights discussed in depth the breadth of the requirement to exhaust domestic remedies and the jurisdiction available to courts that deal with legislative compatibility with human rights instruments.

Facts

Mr Kennedy was imprisoned in the early 1990s after a series of appeals and retrials relating to what he alleged was a false charge of murder by police of a cellmate after he was held overnight at a police station for drunkenness.  The case attracted a large amount of public and parliamentary scrutiny of the police force and United Kingdom judicial system and after being released, Mr Kennedy actively campaigned against miscarriages of justice.

After his release, Mr Kennedy established a small business which was initially successful, however began to suffer as a result of interferences with his business telephone.  Mr Kennedy suspected that this was due to his email, mail and telephone communications being intercepted as a result of his high profile case and involvement in campaigning against the police.  Mr Kennedy alleged that interception warrants that were originally authorised for the criminal proceedings against him were being unlawfully renewed.

Decision

The Court found that no breaches of art 8 (right to privacy), art 6 (right to fair hearing) or art 13 (right to an appropriate remedy) of the Convention had occurred.  The remainder of this note is concerned with the Court’s discussion of art 8, as this right formed the substantial portion of the judgment.

In order to address Mr Kennedy’s individual complaint under art 8, the Court was required to investigate the merits of whether there was an unlawful interference with Mr Kennedy’s right to privacy.

The Court held that mail, telephone and email communications, even in business dealings, are capable of protection under art 8 to be included in interpretations of ‘private life’ and ‘communications’.  Whilst the Court’s jurisdiction normally permits it to only determine whether the manner in which a law has been applied gives rise to a violation of the Convention, legislation involving secret surveillance measures requires particular supervision and care, and as such, the Court had jurisdiction to broaden their scope of analysis.  The Court was required to determine whether there was a ‘reasonable likelihood’ that Mr Kennedy’s communications were being intercepted.

The Court found that this was enough to give rise to a complaint, however, it dismissed his individual complaint on the basis that the interference was justified.  This accorded with the exception available in art 8(2) of the Convention, and required the Court to determine whether the domestic Act itself was proportionate, necessary and in accordance with the rule of law.  The Court undertook extensive analysis to determine whether the intertwining roles of the relevant Commissioner, Code, Act and policy satisfied this outcome.  The Court found that in this case there was sufficient clarity and effective safeguards to ensure that the Act, and the interference with Mr Kennedy’s communication, was therefore not a breach of art 8 of the Convention.

Relevance to the Victorian Charter

The right to privacy is enshrined under section 13(a) of the Victorian Charter, which states that a person has the right not to have their privacy, home or correspondence unlawfully or arbitrarily interfered with.

The Court’s ruling on the scope of the right to include email, telephone and mail correspondence, even in the course of business, is helpful for interpreting this section.  If raising an individual complaint related to this right, it may be necessary for a similar, policy-based requirement of ‘reasonable likelihood’ to be raised by an application under the Charter.

The decision is at www.bailii.org/eu/cases/ECHR/2010/682.html.

Alexandra Phelan, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

Right to Family and Protection of Children Relevant to Sentencing of Parent

R v Ashman [2010] ACTSC 45 (21 May 2010)

In this case, the ACT Supreme Court recognised that the right to family and the best interests of children under the Human Rights Act 2004 (ACT) may be relevant to the sentencing of a parent or guardian.

Facts

In this case, Mr Ashman pleaded guilty to one count of using a carriage service (an internet service provider) to access child pornography and to one count of intentionally possessing child pornography.  The court’s task was to sentence him for these offences.

A search warrant had revealed that Mr Ashman was in possession of seven DVDs of child pornography, amounting to ‘a significant but not very large amount of material depicting some hundreds of children, all disturbing and the majority being the more serious level of sexual activity’.  A psychologist’s report revealed that he was not, however, a paedophile and would not re-offend.

Mr Ashman had no prior criminal record and showed remorse for his actions.  He was the father of three children and his wife suffered a debilitating post-traumatic stress disorder, which rendered her unable to be the principal carer for the children.

Decision

Refshauge J sentenced Mr Ashman to 27 months imprisonment in compliance.  He then suspended this sentence and replaced it with 300 hours of community service work and a probation period of 3 years.

Both the Crimes Act 1914 (Cth) and the Crimes (Sentencing) Act 2005 (ACT) require the court to consider the effect that a sentence would have on the offender’s family.  To this effect, Refshauge J applied Craft v Diebert, which identified that whilst courts would be remiss to give undue weight to personal or sentimental factors, and must ultimately deliver an adequate punishment, they were not to disregard this consideration in all but the most exceptional cases either.

In addition, Refshauge J noted his statutory obligation to recognize the rights of children under s 11 of the HRA, citing R v McLaughlin (ACTSC, SCC 222 of 2008).  This case held that the HRA mandates consideration of the potential hardship caused to children by sentencing decisions.  The case also cited the South African Constitutional Court decision in M v The State [2007] ZACC 18, which construed this right to mean that the interests of children must be taken into account, even where the offence is very serious.

The decision is at www.courts.act.gov.au/supreme/judgments/ashman.htm.

ACT Human Rights Act Project Team

Freedom of Religion and Conscience Objection to Military Service

Eu-min Jung & Ors v Republic of Korea, UN Doc CCPR/C/98/D/1593-1603/2007 (30 April 2010)

The UN Human Rights Committee has held that the Republic of Korea violated art 18, paragraph 1 of the International Covenant on Civil and Political Rights in convicting and sentencing to imprisonment, 11 individuals who refused to be drafted for compulsory military service as a direct expression of their religious beliefs.

The Committee held that the conviction and sentence amounted to an infringement of the complainants’ freedom of conscience and a restriction on their ability to manifest their religion or belief.

Facts

Korea’s Military Power Administration sent each of the applicants a notice of draft for military service requiring enlistment in the army. Each of the applicants refused to be drafted on account of their religious belief and conscience.

Subsequently, each of the applicants were arrested, charged, convicted and sentenced to one and a half years of imprisonment by the District Court under art 88 (section 1) of the Korean Military Service Act.  On appeal, the Supreme Court upheld all of the convictions and sentences.

Appeals to the Supreme Court

Article 88 (section 1) of the Military Service Act provides for the offence of ‘Evasion of Enlistment’ which is triggered in circumstances where a person has received a notice of enlistment and fails to enlist in the army following the expiration of the report period, without justifiable reason.  The offence is punishable by up to 3 years imprisonment.

It was argued by the applicants that the absence in Korea of an alternative to compulsory military service, under pain of criminal prosecution and imprisonment, breached their rights under art 18, paragraph 1 of the Covenant.  The same argument was subsequently put to the Committee.

The Supreme Court relied on similar reasoning in each appeal to uphold the convictions.

Constitutional challenge

Although unrelated to the proceedings in this case, a constitutional challenge to art 88 of the Military Service Act was instituted in 2004 on the grounds of incompatibility with the protection of freedom of conscience under the Korean Constitution.

This challenge was rejected by the Constitutional Court on the basis that the Constitutional protection does not grant an individual right to refuse military service, and conscientious objection to the performance of military service can only be recognised as a valid right if the Constitution expressly provides for that right.

Decision

Korea raised the following issues in response to the applicants’ argument:

1. National security – the need to build military means for the purposes of defense and ensure sufficient ground forces, and concern that alternative military service would jeopardise national security.
2. Equality between military and alternative service – the introduction of alternative service arrangements should be preceded by a series of measures:
   1. stable and sufficient provisions of military manpower;
   2. equality between people of different religions as well as those without;
   3. in-depth studies on clear and specific criteria for recognition of an exemption; and
   4. consensus on the issue among the general public.
3. Lack of a national consensus on the matter – introduction of an alternative arrangement at a premature stage within a relatively short period of time, without public consensus, would intensify social tensions rather than contribute to social cohesion.

The Committee commented that Korea’s response to the applicants’ submission reiterated arguments previously considered by the Committee (in Yeo-Bum Yoon and Myung-Jin Choi v. the Republic of Korea, Communication Nos 1321/2004 and 1322/2004) and as such, applied its earlier jurisprudence.

In particular, the Committee endorsed the following comments in Yeo-Bum Yoon and Myung-Jin Choi:

While the right to manifest one’s religion or belief does not as such imply the right to refuse all obligations imposed by law, it provides certain protection, consistent with article 18, paragraph 3, against being forced to act against genuinely-held religious belief.

The Committee also recalls its general view expressed in General Comment 22[4] that to compel a person to use lethal force, although such use would seriously conflict with the requirements of his conscience or religious beliefs, falls within the ambit of article 18.

As to the issue of social cohesion and equitability, the Committee considers that respect on the part of the State for conscientious beliefs and manifestations thereof is itself an important factor in ensuring cohesive and stable pluralism in society.  It likewise observes that it is in principle possible, and in practice common, to conceive alternatives to compulsory military service that do not erode the basis of the principle of universal conscription but render equivalent social good and make equivalent demands on the individual, eliminating unfair disparities between those engaged in compulsory military service and those in alternative service.

The Committee held that:

the [applicants’] refusal to be drafted for compulsory military service was a direct expression of their religious beliefs which, it is uncontested, were genuinely held and that the [applicants’] subsequent conviction and sentence amounted to an infringement of their freedom of conscience and a restriction on their ability to manifest their religion or belief.  The Committee finds that the State party has not demonstrated that in the present cases the restrictions in question were necessary, within the meaning of article 18, paragraph 3 and that it has violated article 18, paragraph 1, of the Covenant.

The Committee held that Korea was under an obligation to provide the applicants’ with an ‘effective remedy’, including compensation and to avoid similar violations of the Covenant in the future, pursuant to art 2, paragraph 3(a) of the Covenant.

The Committee reinforced the notion that by becoming a party to the Optional Protocol to the Covenant, Korea had undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant, as well as to provide an effective and enforceable remedy where a violation has been established.

Relevance to the Victorian Charter

This decision will be particularly relevant to the interpretation of s14 of the Victorian Charter, being the right to freedom of thought, conscience, religion and belief.

Whilst compulsory military service has been abolished in Australia since 1972, the approach taken by the Republic of Korea on the basis of defending national security is a prevalent theme in current debate surrounding the introduction of counter terrorism legislation in Australia.

The consideration of the ‘necessity’ of the restrictions on human rights in this case will also assist in interpreting the scope of permissible limitations under s7(2) of the Charter.

The decision is at http://tb.ohchr.org/default.aspx.

Kate Moore is a lawyer with Freehills and a volunteer with the Human Rights Law Resource Centre

Protection of the Family and the Right to Determination of Status without Unreasonable Delay

Gonzalez v Guyana, UN Doc CCPR/C/98/D/1246/2004 (21 May 2010)

The UN Human Rights Committee has held that an undue delay in judicial proceedings to naturalize Mr Gonzalez as a citizen of Guyana constituted unreasonable and arbitrary interference with the right to family in violation of art 17(1) of the International Covenant on Civil and Political Rights.  The Committee also opined the right to a fair hearing was compromised by procedural delays in violation of art 14(1) of the ICCPR.  The delays were found to adversely affect Mr Gonzalez’s application for citizenship.

Facts

Mr Gonzalez is a Cuban doctor who entered Guyana in May 2000 to provide medical services for a period of two years.  He entered Guyana under a medical cooperation agreement between the Cuban and Guyanese governments.  Mr Gonzalez worked for the Cuban Central Unit for Medical Cooperation (UCCM).  The UCCM required him to obtain prior authorization from them before entering into contracts with third parties.  It also provided that he must comply with the legal provisions in force for citizens of Cuba should he decide to marry during the period of his contractual obligations.  Mr Gonzalez worked at a regional hospital a little over a year.  In December 2001, Mr Gonzalez married a Guyanese woman and subsequently applied to the Ministry of Home Affairs for Guyanese citizenship.  The Ministry of Home Affairs advised Mr Gonzalez that the Cuban Embassy warned of possible consequences of granting Mr Gonzalez citizenship or a work permit and that setting such a precedent could jeopardize the medical cooperation between both countries.  The Ministry refused to process his citizenship and application for permanent residence.  Mr Gonzalez filed a writ of certiorari in the High Court challenging the refusal of the Minster to register him as a Guyanese citizen.

The High Court granted Mr Gonzalez certiorari and quashed the decision of the Minister of Home Affairs as being unreasonable, arbitrary, in breach of principles of natural justice and based on irrelevant considerations.  It ordered the office of the Minister to review the application for citizenship within one month of the date of the Court’s decision.  The Minister of Home Affairs failed to review the application by the Court’s deadline.

Mrs Gonzalez subsequently filed a writ of certiorari in the High Court challenging the Minister’s refusal to register her husband as a Guyanese citizen and their failure to comply with the Court’s order to review his case within the one month deadline.  She brought the challenge as a ‘miscarriage of justice’ and a violation of her husbands’ constitutional rights as the spouse of a Guyanese citizen.  She also claimed that, as a dissident, he would face long term imprisonment or execution if returned to Cuba.  The High Court dismissed her motion but did not provide reasons for so doing for a further 28 months.  The court’s failure to issue a ruling prevented Mrs Gonzalez from filing an appeal with the Court of Appeals.

The Committee was asked to consider:

• whether the length of the judicial proceedings before the High Court and the presiding judge’s delay in submitting his decision were unreasonable, in violation of the right to a fair hearing protected by art14(1) of the ICCPR; and
• whether the prolonged proceedings constituted an unlawful and arbitrary interference with Mr Gonzalez and his wife’s right to family under art 17(1) of the ICCPR.

Decision

Admissibility: Exhaustion of Domestic Remedies

The Optional Protocol to the ICCPR requires that an author first exhaust domestic remedies in order for a complaint to be deemed admissible.  The Committee determined that High Court proceedings were unduly prolonged and that the delay in issuing reasons was unreasonable.  The Committee stated:

The Committee considers that, in the present case, domestic remedies have been unreasonably prolonged and that article 5 paragraph 2 (b), does not preclude it from examining the communication.

Article 14(1): Right to a Fair Hearing

The Committee determined the delays in the judicial proceedings constituted a violation of the right to a fair hearing under art 14(1) of the ICCPR.  The Committee stated:

The Committee recalls the concept of a fair hearing, as enshrined in article 14, paragraph 1, of the Covenant, necessarily entails that justice be rendered without undue delay.  The Committee concludes that the above delays were unreasonable and that article 14, paragraph 1, of the Covenant has been violated.

Article 17(1): Prohibition of Arbitrary or Unlawful Interference with Family

The Committee did not take a position on whether or not the interference with both spouses’ family was unlawful within the meaning of art 17(1) of the ICCPR.  However, the Committee concluded the manner in which the Guyanese authorities dealt with Mr Gonzalez’s request for citizenship was unreasonable and constituted an arbitrary interference with family under art 17(1) of the ICCPR.  The Committee noted Mr Gonzalez was legally prohibited from residing in Guyana and forced to live apart from his wife during the prolonged judicial proceedings.  The Committee determined Mr Gonzalez and his wife are entitled to an effective remedy, including compensation and appropriate action to facilitate family reunification.

Relevance to the Victorian Charter

The protection of families and children enshrined in s 17(1) of the Victorian Charter is similar to the prohibition of arbitrary or unlawful interference with family found in art 17 of the ICCPR.  Thus, the Victorian Supreme Court may adopt a similar approach when considering the effect prolonged judicial proceedings have on the right to family.  The procedural guarantees to ensure the right to a fair hearing, which encompasses the right to a hearing without unreasonable delay, found in s 24 of the Charter closely mirror art 14(1) of the ICCPR.

The decision is at http://tb.ohchr.org/default.aspx.

Loren Days is an LLM candidate at Melbourne Law School and a volunteer with the Human Rights Law Resource Centre

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HRLRC Policy Work

Opportunity to Endorse Major NGO Report to UN Race Discrimination Committee

In August this year, Australia will be reviewed by the UN Committee on the Elimination of Racial Discrimination for its performance under the Convention on the Elimination of Racial Discrimination (CERD).

A broad based Australian NGO Coalition has prepared a report to the UN CERD Committee on the state of Australia’s compliance with CERD.  The endorsement draft of the NGO Report is available at www.hrlrc.org.au/content/topics/equality/ngo-report-to-cerd-call-for-endorsements/.

The NGO Report has been prepared over the last 5 months in consultation with a broad range of community organisations and NGOs in Australia and we hope that it will also be supported by an even wider range of organisations and individuals.  The more support the better.  The report will be presented to the UN in August 2010, when Australia formally appears for review.

The NGO Report covers key themes of racial discrimination in Australia including:

• Gaps in legal framework for protection (ie the need for constitutional protection from racism, limitation of Racial Discrimination Act, gaps in vilification laws and laws protecting from acts of racial hatred)
• Discrimination against Aboriginal and Torres Strait Islander people (ie the Northern Territory Intervention, suspension of the RDA, inequality in outcomes for health, housing, education and life expectancy, ongoing issues relating to policing and imprisonment, public space laws and native title)
• Discrimination against asylum seekers, refugees and non-citizens (ie mandatory detention, offshore processing, indefinite detention of stateless people, the ‘asylum freeze’, health rights)
• Discrimination against migrant and CALD communities (ie in accessing employment and culturally specific services, increased hostility and sometimes violence in policing young African communities)
• The impact of counter-terror laws on primarily Somali, Kurd and other Muslim Communities (ie the effect of proscribing organisations, increased policing of communities)

If you wish to endorse the report, or part of it, please email Emily Howie (emily.howie@hrlrc.org.au) and Louise Edwards (Louise_Edwards@clc.net.au) no later than 30 June 2010.  The report will be sent to Geneva on 1 July 2010.

Emily Howie is Director of Advocacy and Strategic Litigation with the Human Rights Law Resource Centre

Implementation of the Concluding Observations of the UN Committee on Economic, Social and Cultural Rights

On 28 May, the Centre made a submission to the Department of Foreign Affairs and Trade regarding implementation of the 2009 Concluding Observations on Australia by the UN Committee on Economic, Social and Cultural Rights.

The Centre’s submission outlines practical steps, including legislative, administrative and financial measures, for the Australian Government to improve the promotion and protection of social and economic rights, including in relation to:

• the legal protection of rights;
• anti-discrimination legislation and the mandate, functions and powers of the Australian Human Rights Commission;
• the Northern Territory Intervention, Indigenous self-determination and political participation, together with Indigenous health, education, language and land rights;
• gender equality;
• homelessness;
• mandatory immigration detention; and
• human rights education in Australia.

The Centre’s submission is at www.hrlrc.org.au/content/topics/esc-rights/esc-rights-implementation-of-the-concluding-observations-of-the-un-committee-on-economic-social-and-cultural-rights/.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

Parliamentary Scrutiny and Human Rights: Submission to Senate Legal and Constitutional Committee Inquiry

On 9 June, the Centre made a submission to the Senate Legal and Constitutional Committee in relation to the Human Rights (Parliamentary Scrutiny) Bill 2010, which establishes a Joint Parliamentary Committee on Human Rights and a requirement that legislation introduced to federal parliament be accompanied by a statement which assesses its compatibility with Australia’s international human rights treaty obligations.

The Centre welcomed the Bill and called for its expeditious passage.  The Centre also made the following recommendations to strengthen the Bill and its practical implementation and effectiveness.

Definition of ‘Human Rights’

The Centre submitted that it is appropriate and imperative that ‘human rights’ be defined, as they are in s 3(1) of the Bill, to include all of the human rights and freedoms enshrined in all of the core international human rights treaties to which Australia is a party.  The Centre further submitted, however, that s 3 should provide that:

• ‘human rights’ includes ‘the rights and freedoms recognised by customary international law’, such norms being binding on Australia and a critical component of our international human rights law obligations; and
• in determining the scope and content of ‘human rights’, ‘proper consideration be given to international human rights law and the judgments of domestic, foreign and international human rights courts, bodies and tribunals’.  This would encourage both policy-makers and parliamentarians to draw on extensive and illuminating international and comparative human rights jurisprudence.

Joint Parliamentary Committee on Human Rights

In the Centre’s submission, the functions of the Committee should be expanded to include:

• the power ‘to inquire into any matter relating to human rights which is referred to it by resolution of either House of Parliament’.  This would enhance the independence and effectiveness of the Committee and ensure that its capacity to conduct thematic inquiries is not solely determined by the Government of the day.
• the power to monitor and report on the implementation of the recommendations and view of UN human rights bodies.  This would enhance parliament’s capacity, and assist to discharge its obligation, to play an active role in monitoring, overseeing and following up on the implementation of recommendations and decisions of international human rights mechanisms.

The powers, proceedings and modalities of the Committee are to be ‘determined by resolution of both Houses of Parliament’.  In the Centre’s view, in determining the Committee’s powers and working methods, Parliament should have regard to the following considerations.

• First, the Committee should be given broad and permissive powers.  The broad mandate and modalities of the UK Joint Committee on Human Rights, recommended by the Council of Europe as an example of best practice in parliamentary human rights scrutiny, is one of its key strengths.
• Second, the Committee should ‘screen’ all Bills that come before parliament, but, as with the UK Committee, focus its inquiries and reports on those Bills which raise prima facie human rights concerns.  This will ensure that the work of the Committee is appropriately targeted.
• Third, in assessing and reporting on the human rights compatibility of legislation, the Committee should consider Statements of Compatibility (together with other extrinsic materials), but should conduct its own independent analysis to ensure effective scrutiny of Bills.  It should also consider relevant international and foreign human rights jurisprudence.
• Fourth, the Committee must have the power to call for submissions, convene public hearings and examine witnesses.
• Fifth, the Committee must be given sufficient time to conduct inquiries and produce reports so as to enable community engagement and actually inform parliamentary debate in a meaningful way.  This is particularly important where a Bill raises major human rights issues, limits or intrudes on human rights in a significant way, or is developed urgently or hastily.
• Sixth, it is critical that the Committee have an adequately resourced secretariat with the requisite human rights law experience and expertise.

Statements of Compatibility

While the Human Rights (Parliamentary Scrutiny) Bill 2010 specifies that Statements should include an ‘assessment’ as to the compatibility of a proposed Bill with the human rights in all seven core UN human rights treaties to which Australia is party, it is silent on the nature, scope and detail of this assessment.  If Statements of Compatibility are to fulfil their purpose of ‘improving parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development’, they should have the following features.

• First, human rights should be considered, and Statements of Compatibility prepared, early in the policy development process.
• Second, Statements must be reasoned and include detailed and rigorous analysis of the human rights issues and interferences raised by a Bill.  Statements of Compatibility should explain limitations in a rigorous and evidence-based manner which justifies the intrusion on rights.
• Third, Statements should not be too long, legalistic or technical as this will detract from their utility in informing parliamentary dialogue about rights.  Neither, however, should they be too brief or cursory.  The detail and length of Statements should be commensurate with the human rights implications of the proposed legislation or legislative instrument.
• Fourth, given the extensive international and comparative human rights jurisprudence from which Australia can draw, it would be useful for guidelines on the preparation of Statements to specify that, in considering the scope and content of the seven core human rights treaties, proper consideration be given to international and comparative human rights jurisprudence.
• Finally, to have the greatest impact and accessibility, Statements of Compatibility should be tabled with the Second Reading Speech and Explanatory Memorandum of a Bill.

The Centre’s submission is at www.hrlrc.org.au/content/topics/national-human-rights-consultation/submission-to-senate-inquiry-into-human-rights-parliamentary-scrutiny-bill-2010/.

Submissions close on 9 July 2010: www.aph.gov.au/senate/committee/legcon_ctte/human_rights_bills/info.htm.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

Human Rights and Aid Effectiveness in PNG

On 27 May, the Centre wrote to the Foreign Minister, Stephen Smith, in relation to the current review of the PNG-Australia Development Cooperation Treaty.

In its letter, the Centre recalled the recent recommendation of the Joint Standing Committee on Foreign Affairs, Defence and Trade that AusAID ‘adopt a human rights-based approach to the planning and implementation of development projects’.  The Centre also drew attention to the call by the UN Special Rapporteur on Torture for ‘the international donor community to consider the protection of human rights as the highest priority’ in PNG.

Having regard to these developments, the Centre outlined that the treaty review is a significant opportunity for Australia to enhance aid effectiveness, demonstrate leadership on human rights in the Asia-Pacific, and contribute to the realisation of human rights in PNG in practical and effective ways.  Further, the Centre called on the Australian Government to take advantage of this opportunity by explicitly committing to the promotion and protection of human rights as a primary goal and instrument of Australia’s development cooperation with PNG.

The Centre’s letter is at www.hrlrc.org.au/content/topics/asia-pacific/human-rights-and-aid-effectiveness-in-papua-new-guinea/.

An opinion piece by the Centre published in The Age on 4 June 2010 is at ‘Australian Aid to PNG Must Also Foster Human Rights’.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

Right to Life: Submission on Investigation of Police Related Deaths

On 18 June 2010, the Centre made a submission to the Office of Police Integrity inquiry into the investigation of deaths associated with police contact.  The HRLRC submitted that in order to discharge its obligations under the Victorian Charter, the Government needs to establish a human rights-compliant framework for the investigation of deaths associated with police contact.

The Victorian Government needs to establish an Independent Body which is hierarchically, institutionally and practically independent of the organisation being investigated, both in theory and in practice.

The Independent Body must be adequately empowered and resourced to, where necessary, conduct the primary investigation of the death, in place of the investigative role currently undertaken by the Homicide Squad.  Investigations must be placed in the hands of the Independent Body as soon as practicable, ideally within one hour of a death associated with police contact.

Investigations must be conducted with genuine independence.  This should involve procedural safeguards, such as separating police officers until they are interviewed by the Independent Body.  It is important that police officers (either witnesses or suspects) are interviewed as soon as practicable, preferably within 24 hours after the incident, unless there are exceptional and justifiable circumstances.  Interviews must be recorded electronically.  Police officers involved in the relevant event should be required to cooperate with the investigation and provide all relevant accounts and documents regarding the event.

Finally, independent review mechanisms must be established to permit public scrutiny of investigations and their results.  Specifically, the victim and/or next-of-kin must have an enforceable right to be involved in the investigation to the extent necessary to safeguard their legitimate interests.

The Centre’s submission is at www.hrlrc.org.au/content/topics/victorian-charter-of-human-rights/right-to-life-submission-on-investigation-of-police-related-deaths-18-june-2010/.

Emily Howie is Director of Advocacy and Strategic Litigation with the Human Rights Law Resource Centre

Centre Influences New Framework for ‘Australia’s Law and Justice Engagement with the Pacific’

The Attorney-General and Minister for Foreign Affairs recently launched Australia’s Framework for Law and Justice in the Pacific.  The Framework is a high-level statement of priorities intended to guide Australia’s work in the Pacific law and justice sector.

The Framework commits Australia to help Pacific countries strengthen the rule of law and protect human rights.  It states that ‘[t]he performance of the law and justice system is critical to the preservation of fundamental human rights, promotion of the rule of law and access to justice, particularly for the poor and vulnerable.  Without development in this area, achievement of the MDGs will be beyond reach’

The Framework emphasizes the importance of building partnerships with Pacific government and non-government agencies and building local capacity.  It details specific commitments in areas including transnational crimes, gender equality and violence against women, public administration and access to justice.

The Human Rights Law Resource Centre provided comments on a draft of the Framework which were subsequently incorporated in the final document.  The Centre’s comments discussed ways in which the protection and promotion of human rights contribute to positive security, governance and development outcomes and recommended that the human rights framework play a central role in Australia’s law and justice engagement with the Pacific.

The Framework for Law and Justice in the Pacific is available at www.ag.gov.au/pacificframework.

Rachel Ball is Director of Policy and Campaigns with the Human Rights Law Resource Centre

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HRLRC Casework

Coronial Inquest into Police Shooting of Youth

In June, the Human Rights Law Resource Centre provided the Coroners Court with extensive submissions on the scope of the coronial inquest into the death of Tyler Cassidy, who was shot by members of Victoria Police in December 2008.  The other interested parties also provided submissions on scope and any further witnesses that ought to be called by the Coroner.

The Coroner also requested that the HRLRC explain in detail how the facts in this case potentially enliven the provisions of the Victorian Charter and to identify relevant international jurisprudence.  The HRLRC’s submissions on scope therefore also explain in detail how the right to life and the right of children to protection are engaged by the facts in the inquest.

A directions hearing is listed for 8 July 2010, at which time the scope and witnesses are expected to be finalised and a hearing date set.

The Centre is being assisted in this case on a pro bono basis by Allens Arthur Robinson, together with Brian Walters SC and Sam Ure of Counsel.

Centre Makes Submissions in Case Regarding Health Care and Protection of Life

On 31 May 2010, the Centre made submissions on the human rights issues that arise from the death of Veronica Campbell, a woman who died tragically of an ectopic pregnancy whilst waiting for an ambulance in rural Victoria.

The HRLRC submits that the case engages the positive duty under the right to life (s 9 of the Victorian Charter), namely the requirement for public health services to have policies, practices, precautions and systems of work in place to protect life.  The human rights law issues do not include the blame to be apportioned to individuals, but rather seek to address systemic issues in order to prevent the same tragedy from happening again.  This role in relation to the Charter is consistent with the Coroner’s enhanced preventative role under the new Coroners Act 2008 (Vic).

The Centre is being assisted in this case on a pro bono basis by Mallesons Stephen Jaques, together with Chris Young of Counsel.

Emily Howie is Director of Advocacy and Strategic Litigation with the Human Rights Law Resource Centre

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Seminars and Events

Castan Centre 2010 Human Rights Conference

16 July 2010, Melbourne

The Castan Centre Conference, Human Rights 2010, will be held on Friday, 16 July 2010 at the State Library of Victoria.

Keynote speakers include: Dr Helen Szoke (Commissioner, Victorian Equal Opportunity and Human Rights Commission), Associate Professor Peter van Onselen (Contributing Editor The Australian), Megan Davis (Director, Indigenous Law Centre, UNSW), Iarla Flynn (Head of Public Policy and Government Affairs, Google) and Professor Ron McCallum AO (Chair, UN Committee on the Rights of Persons with Disabilities).

For further information, see www.law.monash.edu.au/castancentre/events/2010/conference-2010.html.

‘Human Rights as Foreign Policy’ with Prof Alison Brysk, the Rt Hon Malcolm Fraser AC CH, Chris Sidoti and Daniel Flitton

16 August 2010, Melbourne

The Human Rights Law Resource Centre and the Australian Council for International Development present a public seminar on ‘Human Rights as Foreign Policy’.

Time:            6.00pm to 7.45pm

Date:            Monday, 16 August 2010

Venue:            Blake Dawson, Level 26, 181 William Street, Melbourne

Cost:            $25 / $15 concession or full-time students

RSVP:            9 August 2010 (Use booking and payment form at www.hrlrc.org.au)

Alison Brysk has authored and edited numerous books on human rights, foreign policy and globalization.  Prof Brysk’s most recent book is Global Good Samaritans: Human Rights as Foreign Policy (OUP, 2009).

Malcolm Fraser was Prime Minister of Australia from 1975 to 1983.  He was Chairperson of CARE Australia from 1987 to 1992 and President of CARE International from 1990 to 1995.

Chris Sidoti is an international human rights expert and consultant.  He has worked as Australian Human Rights Commissioner, Australian Law Reform Commissioner and Executive Director of the International Service for Human Rights in Geneva.

Daniel Flitton is Diplomatic Editor for The Age and writes on international affairs and foreign policy.  He previously worked as an analyst at the Office of National Assessments and as an academic at the ANU and Deakin University.

‘The Erosion of the Right to Privacy in the Fight against Terrorism’ with Prof Martin Scheinin, UN Special Rapporteur on Human Rights and Counter-Terrorism

24 August 2010, Melbourne

The Human Rights Law Resource Centre and the Institute for International Law and the Humanities at Melbourne Law School present a seminar on ‘The Erosion of the Right to Privacy in the Fight against Terrorism’.

Time:            5.30pm to 7.00pm

Date:            Tuesday, 24 August 2010

Venue:            Melbourne Law School, 185 Pelham Street, Carlton

RSVP:            23 August 2010 to vesnas@unimelb.edu.au.

Martin Scheinin is UN Special Rapporteur on the promotion and protection of human rights while countering terrorism and Professor of Public International Law at the European University Institute in Florence.

Educating for Human Rights, Peace and Inter-Cultural Dialogue

4-6 November 2010, UWS, Sydney

This conference will examine the contribution of human rights culture to the good functioning of civil society; highlight key trends and achievements in human rights education in particular, and aim to secure greater commitment for future human rights education.

Confirmed speakers include the Hon Michael Kirby, the Hon Catherine Branson, the Hon Robert McClelland, Julian Burnside QC and Dr Helen Szoke.

For further information, see www.humanrightseducationconference2010.com.au/.

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Human Rights Resources

HRLRC in the News

The Centre has published the following opinion pieces since the last Bulletin:

• Rachel Ball, ‘Boat Arrivals are a Drop in the Ocean’, The Age (Melbourne), 7 June 2010
• Philip Lynch, ‘Australian Aid to PNG Must Also Foster Human Rights’, National Times, 4 June 2010

The Centre has featured in the following news reports since the last Bulletin:

• Melissa Fyfe, ‘Ambulance Delay May Have Breached Mother’s Right to Life’, The Age (Melbourne), 13 June 2010
• Jeff Waters, ‘Offshore Detention Faces High Court Challenge’, ABC Online, 2 June 2010
• ABC, ‘Prisoner’s Bid for Continuing IVF Treatment’, ABC Online, 2 June 2010
• Norrie Ross, ‘Prisoner Says Refusal to Permit IVF Treatment is a Breach of Rights’, Herald Sun (Melbourne), 1 June 2010
• AAP, ‘Inmate Wants Access to IVF Treatment’, The Age (Melbourne), 1 June 2010
• AAP, ‘Prisoner Should Have IVF Access: Lawyer’, The Age (Melbourne), 1 June 2010

AHRC Launches New Human Rights Law Library

The Commission’s human rights law resources can now be accessed as a one-stop shop on Austlii’s Australian Human Rights Law Library.

In addition to Commission decisions from 1985-2001, the library links directly to AHRC reports to federal Parliament about complaints by individuals of human rights breaches by the Commonwealth.

The library will also assist practitioners to link directly to the Commission’s flagship legal text, Federal Discrimination Law (FDL), which provides a detailed overview of relevant statutory provisions and judgments, as well as notes on practice, procedure and damages.

An updated FDL, including summaries of the latest federal discrimination cases, should be available on both the Austlii site and the Commission’s website by the end of June at: www.humanrights.gov.au/legal/FDL/index.html.

The Australian Human Rights Law Library is at: www.austlii.edu.au/au/special/hrights/.

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Human Rights Jobs

There are a number of current human rights positions available within:

• The Community Legal Sector – see www.communitylaw.org.au/cb_pages/jobs_and_getting_involved.php
• Victorian Equal Opportunity and Human Rights Commission – see www.humanrightscommission.vic.gov.au/about%20us/employment/
• Australian Human Rights Commission – see www.humanrights.gov.au/about/jobs/index.html
• The aid and development sector – see www.acfid.asn.au/get-involved/job-vacancies.

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Foreign Correspondent

Developments from the UN and in International Human Rights Law and Practice

Human Rights Council

Another June is coming to an end and so too another session of the Human Rights Council.  Like most others, this one was not without its share of controversy.  There were far too many issues discussed to cover in this brief report, so I’ll focus on the key controversial ones.

The controversy began early into the session, which commenced over 3 weeks ago, with the calling of a Special Session on the issue of the Israeli attack on the humanitarian flotilla.  A resolution was adopted, strongly condemning the Israeli attack, and requesting the dispatch of an international fact-finding mission to investigate violations of international law.  It also demanded the release of those detained, requested that the International Committee of the Red Cross obtain information on those injured or detained, and called upon Israel to allow unimpeded humanitarian assistance to the Gaza strip.

During the Council session, a debate was held on the follow-up to and implementation of the Vienna Declaration and Programme of Action, where many broad issues were discussed.  The Australian delegation made a statement on behalf of Canada and New Zealand, calling for the decriminalisation of consensual same-sex activities.  The item became controversial when Norway read a joint statement on behalf of 54 countries on the situation in Iran, recalling the one-year anniversary of human rights violations following the Iranian elections, and calling on the government to live up to its Vienna Declaration commitments, including by allowing the High Commissioner for Human Rights to visit; guaranteeing freedom of expression, freedom of the media and of assembly; protection of religious minorities; respect for the human rights of prisoners and detainees; equal treatment of women and girls in law and practice; and to conduct an investigation into election-related killings.  Iran, followed by Pakistan (which led a group of countries including Nigeria, Egypt, Algeria, Cuba, Nicaragua, China, Venezuela, Bolivia, Sudan, Malaysia, Syria, the Democratic People’s Republic of Korea), intervened to object to the mention of a particular country situation under this agenda item at the Council.  A long period of debate, including an adjournment for some off-the-record negotiations, took place.  While Norway was eventually able to finish its statement, the governments that objected noted this should not serve as a precedent for raising country situations under this agenda item at the Council, and warned that this would be examined as part of the overall review of the Council to take place next year.  When Amnesty International later tried to make a statement addressing the human rights situation in China, they were also interrupted, at which point the AI representative stated that stifling debate on country situations would make a mockery of the Council.  It is becoming clearer that while the 2011 review of the Council may seem to many like just more navel-gazing on the part of Geneva-based diplomats, what is potentially at stake is the proper functioning of the UN’s pre-eminent human rights body and its ability to seriously consider human rights violations around the world.

It had been expected that one of the controversial items at this Human Rights Council session would be the debate around the presentation of the joint study on secret detention, which was presented to the Human Rights Council by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; the Vice Chair of the Working Group on Arbitrary Detention; and the Chair of the Working Group on Enforced or Involuntary Disappearances.  Many States had been unhappy with the initiative of these mandate holders to work on this issue, and most statements objected to the methodology the special procedures used in presenting the information, which was often based on anonymous sources.  Some governments used this as an opportunity to attack the special procedures for allegedly failing to comply with their Code of Conduct, making it clear that the independence and strength of the special procedures would again be under threat as part of the Council review.

The Council did manage to appoint some new Special Rapporteurs.  Sadly for Australia neither of its candidates, Chris Sidoti and Carolyn Evans, were successful in their bids, and neither were several of the candidates who had been selected by the President of the Council, due to last minute pressure and a refusal by some governments to ratify his selections.  One NGO referred to this as ‘outrageous political pressure’ and accused the President of ‘disappointingly caving in’.  Although the mandates of the special procedures on freedom of religion or belief and on internally displaced persons were renewed, the proposed mandate holder for the former of these, along with the Independent Expert on Burundi, were changed at the last minute due to pressure from the African Group and the Organisation of the Islamic Conference.

On the topic of special procedures, this Council session was the final session for Philip Alston in his role as Special Rapporteur on extrajudicial, summary or arbitrary executions.  He presented his final reports, including a report focusing on the use of drones and the reports on his country missions such as the mission to the DRC.  In doing so, he requested a minute of silence in memory of Mr Floribert Chebeya Bahizire, Executive Director of the DRC NGO Voix des sans Voix.  Mr Bahizire had been one of the activists Mr Alston met during his mission, and it is widely suspected that his killing was linked to officials inside DRC.  In his report on targeted killings, Alston focused attention on the expansive interpretation of the right to self-defence used by the US in its fight against terrorism and the problem of accountability, particularly in the context of drone killings carried out by the CIA.  He called for the regularization of the use of armed drones.  The US did not respond to the substance of this report, claiming that they had not had time to review the contents of the report.

Another controversial Special Rapporteur was Mr Anand Grover, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, who presented a report on how criminalisation of same-sex relations and same-sex orientation, sex work, and HIV/AIDs transmission impair the enjoyment of the right to health.  Given the controversy surrounding these subjects it unsurprisingly attracted much criticism, including attacks upon his mandate and whether or not addressing such topics was in violation of the Code of Conduct.  The Special Rapporteur also presented his report on his mission to Australia, and while the Australian Government broadly welcomed his visit and report, they did not commit to specific follow up to his findings and recommendations.

In terms of outcomes, two notable outcomes of this session were the adoption of a resolution requesting the Council to hold a workshop on the conceptual and practical dimensions of prevention of human rights violations, a new focus of the Council’s work, and a requests that the Human Rights Council Advisory Committee begin work on drafting an international declaration on the right of peoples to peace.

Perhaps one of the most positive aspects of this session was a panel on the topic of maternal mortality, where the recently published OHCHR report on this issue was presented.  A statement endorsed by 108 countries was read by Colombia – on behalf of Burkina Faso and New Zealand – inviting the High Commissioner to present OHCHR’s study to the MDGs Summit to advance discussions on the importance of integrating a human rights perspective in realising targets such as MDG5 on improving maternal health (which remains the most difficult to achieve of the MDGs).

Millennium Development Goals Review Summit

Much of the human rights attention around the world is now turning to the lead-up to the UN Summit to be held in New York in September, at which a global action agenda will be adopted for accelerating progress towards the Millennium Development Goals.  Amongst the many preparatory activities is an e-Discussion on ‘Practical Examples and Policies in Furthering Human Rights and the MDGs’, launched by the Deputy High Commissioner for Human Rights and Chair of the UNDG Human Rights Mainstreaming Mechanism, Kyung-wha Kang, and Geraldine Fraser-Moleketi, Director of the Democratic Governance Group, UNDP and Vice-Chair.  To participate, go to the UN Human Rights Policy Network (HuriTALK) website.

South Africa and the World Cup

I’m assuming that life in Australia recently has been no different to the rest of the world – with plenty of time spent glued to TV screens watching the World Cup action from South Africa.  However, human rights activists have been eager to point out that it is not all fun and games.  The South African hosts have been plagued, like most mega-event hosts, with human rights problems directly arising as a result of being the world’s playground.  Displacements and evictions of local residents have taken place, with temporary camps being built to house undesirables away from the eyes of the international media.  Labour rights have been a long standing concern, with strikes and protests over wages and conditions having been a hallmark of the last couple of years of construction efforts.  Even rampant use of child labour in the production of the soccer balls has been reported, along with increased levels of police harassment and criminalization of homelessness.  This is not a new phenomenon for the World Cup or any other large-scale event of this nature, but prompts us to remember that what we see when watching the broadcast images of the football pitch is not the full story and that the impact on local communities needs to be more properly considered so as to ensure a positive legacy.

Claire Mahon is an Australian international human rights lawyer based in Geneva, Switzerland, where she works as a consultant for NGOs and the UN.  She is the Coordinator of the Project on Economic, Social and Cultural Rights at the Geneva Academy of International Humanitarian Law and Human Rights, and an Adjunct Clinical Professor of Law at the University of Michigan Law School.

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If I Were Attorney-General…

Promoting and Protecting Fairness: Time for Comprehensive Equality Law Reform

If I were to assume, if only in imagination, the role of Attorney-General, I would try to make human rights more effective for all Australians.  There is much to be done.

The Government has recently introduced legislation to establish a Parliamentary Joint Committee on Human Rights and to require statements of compatibility of draft legislation to be laid before Parliament (Human Rights (Parliamentary Scrutiny) Bill 2010).  These measures take up, in part, the Report of the National Consultation (the Brennan Committee), but they create no new substantive rights.  The Committee’s recommendations for a comprehensive federal Human Rights Act have not been accepted.

Undaunted by this, I would nevertheless start a process aimed at the enactment of a general protection of the right to equality and non-discrimination, as the precursor of a constitutional provision.

Australian law does not ensure or protect equality on a comprehensive basis.  There are many gaps and inconsistencies in the current protection provided by federal anti-discrimination laws.  They do not apply, for example, to discrimination on the basis of religion, nationality or sexual preference.  There are exemptions and exclusions from the legislation, and it can be overridden, as occurred with the Racial Discrimination Act in 2007.  Equality in the judicial process is an accepted norm, but express constitutional protection of equality applies only to State discrimination against residents of another State (s 117).  The Constitution may actually authorise racial discrimination (s 51 xxvi).

The right to equality and non-discrimination is a basic human right, and is an essential element in the key instruments to which Australia is a party.  Collectively, those instruments require States to provide equality before the law and the equal protection of the law, comprehensive protection from discrimination and the equal enjoyment of rights and freedoms, without distinction or discrimination on any ground.  Equality rights apply to the full range of rights and freedoms, whether civil, political, economic, social or cultural.

Contrary to our international commitments, discrimination can occur in Australia for which no recourse or remedy is available.  The UN treaty bodies have criticised the lack of comprehensive protection of human rights in Australia.  The Human Rights Committee has, in particular, recommended the adoption of legislation providing comprehensive protection of the right to equality and non-discrimination (Concluding Observations, 2000, 2009).

Federal anti-discrimination laws need to be thoroughly overhauled to comply more fully with our international human rights obligations and to eliminate the current anomalies and inconsistencies.  The Brennan Committee recommended this as a priority area for reform.

Such reform, though welcome, would fall short of a full guarantee of equality and non-discrimination, comprehensive both as to grounds and areas of application. To meet our international commitments and to provide protection of equality, and the remedies which attach to it, we need a legislative guarantee of equality and non-discrimination, with similar force and effect to that envisaged for the rights which would be protected under a general Human Rights Act.  It should be the precursor to a constitutional guarantee.

A legislated guarantee of equality should be based on art 2(1) and art 26 of the ICCPR, which encompass equal enjoyment of rights, equal protection of the law and protection against any discrimination.

The ACT Human Rights Act 2004, s 8 and the Victorian Charter of Human Rights and Responsibilities Act 2006, s 8 echo the provisions of ICCPR art 26.  Valuable models for the protection of equality rights can also be found in the Canadian Charter (s 15) and South African Bill of Rights (s 9).

A comprehensive Equality Act would guarantee equality before the law and under the law, equal protection and benefit of the law, protection against discrimination on any ground, and protection of the full and equal enjoyment of human rights and fundamental freedoms.  Compatibly with the Covenant, the legislation should permit distinctions to be made on reasonable and objective criteria, in pursuit of a legitimate purpose consistent with recognised rights, and for affirmative action to eliminate conditions which contribute to prohibited discrimination.  It would be aimed primarily at public authorities (including those of the States) and would have impact on subsequent legislation as far as is possible.  It would act in conjunction with the reformed anti-discrimination laws.

The courts would have jurisdiction to consider whether a distinction was discriminatory; the outcome of any decision would depend on the model adopted.  Where direct remedies are considered appropriate, these should be accessible and affordable.

No doubt difficult issues would arise from time to time, possibly with political overtones.  However, jurisprudence under the ICCPR and in Canada and other countries show that the courts are equal to these challenges.

My first step would be to initiate a consultation process on the most appropriate mechanism for implementing a comprehensive statutory guarantee of equality along the lines outlined, to be introduced and adopted as soon as possible.

The enactment of such a law would be entirely consistent with the goals of any more comprehensive Human Rights Act which might follow, as it would be a part of such an Act.  It would build on our existing protection of rights, advance compliance with our principal human rights obligations, overcome anomalies and gaps in current protection and would accord with the ideals of fairness and equality for which Australia likes to be known.

Elizabeth Evatt AC is a former judge of the Federal Court and Chief Justice of the Family Court, a former member of the UN Human Rights Committee and the UN Committee on the Elimination of Discrimination against Women, and a Commissioner of the International Commission of Jurists.

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As the Federal Government prepares its response to the report of the Joint Parliamentary Committee on Foreign Affairs, Defence and Trade, ‘Human Rights and the Asia-Pacific: Opportunities and Challenges’, this policy brief on ‘Human Rights in the Asia-Pacific: Australia’s Role and Responsibilities’ contends that Australia should develop a comprehensive policy on human rights in the region.  The brief makes 21 concrete recommendations for action in the following areas:

• Human Rights as a Key Instrument and Aim of Australian Engagement in the Region
• Adopting a Human Rights-Based Approach to Aid and Development Assistance
• Adopting a Human Rights-Based Approach to Military and Security Cooperation
• Empowering Communities and Supporting NGOs
• Human Rights Treaty Ratification and Implementation
• Strengthening Human Rights Institutions
• Enhancing Parliamentary Engagement with Human Rights
• Human Rights Envoys and Ambassadors

This brief is the fifth in a series of policy papers designed by the Human Rights Law Resource Centre to inform and advance the human rights agenda in Australia.  Each brief identifies a human rights problem or opportunity, discusses the imperative for action, analyses relevant evidence, and makes concrete recommendations for Australia to advance the agenda at the international and national levels. 

Policy Brief on an Agenda to Promote Equality and Address Discrimination in Australia
(24 May 2010)

The policy brief on ‘Promoting Equality and Addressing Discrimination in Australia’ identifies that the law can and should play a central normative and educational role in advancing meaningful equality for all Australians.  This requires a shift away from an outdated and ineffective complaints-based, remedial model of anti-discrimination laws.  Instead, Australian law should promote a rights-based model of substantive equality which emphasises equal outcomes and addresses structural causes of inequality.  This would contribute to a more fair, cohesive and productive society.

The brief makes 7 concrete recommendations for action, including that:

1. The Government should release an exposure draft for a single, comprehensive Equality Act which promotes and enshrines a legal right to substantive equality.
2. The federal Equality Act should include a provision mandating that, after four years of operation, an inquiry be held into a constitutional amendment aimed at enshrining the right to equality.
3. The Federal Government should require public bodies to consider equality in policy development, spending and service delivery. 
4. The Federal Government, its agencies and public authorities should use public procurement to promote equality and assess suppliers on the progress that they are making in reducing inequality.
5. The Federal Government should show political leadership and support for the equality agenda by appointing a Minister for Human Rights and Equality who should hold a seat in cabinet.
6. All public bodies should produce and publish annual equality reports. 
7. The Australian Human Rights Commission Act should be amended to provide that all Commissioners are to submit a report, to be tabled in Parliament, regarding the status of human rights in Australia within their areas of responsibility and containing concrete recommendations to enhance human rights in these areas.  Further, the Commission should be adequately resourced to discharge this function. 

Policy Brief on Protecting Privacy while Responding to Terrorism
(3 May 2010)

The policy brief on ‘Protecting Privacy whilst Responding to Terrorism’ contends that the Australian Government should become a world leader in protecting the rights of its people to be safe from both terrorism and from undue interference with privacy.  Governments have a duty to protect the rights, lives and safety of people within their territory from legitimate threats of terrorist attacks.  However, protecting the community from terrorism and protecting human rights are not mutually exclusive.

The brief sets out the steps for the Australian Government to take to implement the approach to privacy protection recommended by the UN Special Rapporteur on Human Rights and Counter-Terrorism.  In particular it sets out important steps to be taken domestically, in both law and policy, and also opportunities to lead international developments such as a global declaration on data protection.

Policy Brief on Foreign Policy and Human Rights
(6 April 2010)

The policy brief on ‘Foreign Policy and Human Rights’ contends that human rights should be both a key goal and a key instrument of Australian foreign policy.  It sets out that, despite identifying ourselves as a ‘principled advocate of human rights for all’, and demonstrating significant commitment to human rights in practice, Australia has not developed a comprehensive, consistent and coherent policy on human rights and foreign affairs.  Such a policy could integrate human rights in all areas of Australian foreign affairs and capitalise on the benefits of doing so.

The brief maintains that Australia’s approach to human rights and foreign policy should be progressive, principled and persistent.  It sets out 14 concrete recommendations for action at the international, regional and domestic levels under the headings of:

• a principled approach to universal human rights and accountability;
• multilateralism and engagement with the United Nations; and
• empowering communities and supporting NGOs.

Policy Brief on Business and Human Rights
(22 March 2010)

The policy brief on ‘Business and Human Rights’ contends that the further development and operationalisation of the business and human rights agenda presents a significant opportunity and responsibility for Australia, both at the international and domestic levels.  It contains 15 recommendations for Australian action at the international and local levels.

The brief makes 6 concrete recommendations for Australian action at the international level, including explicitly adopting the Special Representative’s framework as a basis for Australia’s approach to corporate human rights law and policy, and conducting conduct human rights impact assessments of proposed multilateral and bilateral trade and investment agreements, together with major public-private projects. 

The brief makes 8 recommendations for Australian action at the local level, including using public procurement to reinforce the responsibility of business to respect human rights and to promote socially and environmentally responsible governance, and amending the Corporations Act 2001 to require (or at the very least explicitly permit) directors to consider human rights issues as an aspect of their duty to act in the best interests of the company.