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This edition of the Bulletin includes:

• Opinion piece by Elaine Pearson on war crimes in Sri Lanka and Australia’s role
• A wrap up of the month’s human rights related news coverage
• International Human Rights Developments on a new treaty protocol to enable children to have their human rights complaints heard and Human Rights Watch releases its 22nd annual World Report
• National Human Rights Developments, including a human rights check for new federal laws, a move to abolish mandatory sentences for people smuggling, a paper on needle and syringe programs in prisons and the Government moves to enable same-sex couples to marry overseas
• State-based Human Rights Developments, including options to halt rising rates of assaults against women and lessons in prison policies
• Australian Human Rights Case Notes on consideration of ‘special circumstances’ of alleged infringement offenders
• A range of International Human Rights Case Notes including from the European Court of Human Rights, UN treaty bodies, South Africa, the United Kingdom and Canada
• Information about the HRLC ’s policy and case work, including a Briefing Paper for the new Attorney-General, a submission on Realising the Right to Equality, and updates on the Occupy Melbourne legal challenge and an HRLC application to the European Court of Human Rights
• HRLC Media Coverage
• Details of forthcoming human rights seminars and events
• Information about human rights jobs
• Foreign Correspondent by Anita Goh of the NGO Group for the CRC
• ‘If I were Attorney-General’ by John Corker, Director of the National Pro Bono Resource Centre, on reviewing Australia’s detention laws and systems

Australia should find its voice on Sri Lanka’s war crimes

Elaine Pearson

As nations like Canada and the United Kingdom weigh in on accountability for war crimes in Sri Lanka, it’s time for Australia to add its voice. After all, promoting human rights is a crucial part of Australia’s foreign policy, as Foreign Minister Kevin Rudd is keen to say.

One month ago, the Sri Lankan government’s Lessons Learnt and Reconciliation Commission (LLRC) issued its long-awaited report. The commission was established by President Mahinda Rajapaksa in May 2010 to deflect mounting international pressure on accountability for alleged war crimes in the final months of the conflict with the separatist Liberation Tigers of Tamil Eelam (LTTE).

As the United Nations Panel of Experts appointed by Secretary-General Ban Ki-moon  reported last April, tens of thousands of civilians were killed during that period, largely from indiscriminate shelling by government forces. Government forces were also implicated in extrajudicial killings, torture, and the shelling of protected places such as hospitals, while the LTTE abuses included using civilians as human shields, shooting people who tried to escape, and forcibly conscripting child soldiers. But nearly three years after the conflict ended in May 2009, there is still no accountability for any of these war crimes.

In the end, the commission’s 388-page report is disappointing. It discounts the worst government abuses,  such as disturbing footage of summary executions of prisoners by uniformed soldiers shown in the British Channel 4 documentary Sri Lanka’s Killing Fields. Though four independent experts  reported to the UN that the footage was genuine, the commission cast doubts on its authenticity and recommended further forensic testing. More surprising, although the commission concluded that there were civilian casualties, it didn’t call for investigations into indiscriminate attacks.

The report rehashes longstanding recommendations on accountability from previous government commissions. There’s no reason to believe the government will carry them out now since it never has before. In short, the report doesn’t advance accountability for victims of Sri Lanka’s  armed conflict. Its serious shortcomings highlight the need for an international investigative mechanism into the wartime abuses, as the UN Panel of Experts recommended.

Last year, after the Killing Fields aired on Australian television,  Rudd called on the UN Human Rights Council, which at war’s end had publicly dismissed the possibility of government wartime abuses, to reconsider its findings. “I believe their deliberation on it was inadequate,” he said, “and I would call upon – as does the Australian government through its mission in Geneva – the Human Rights Council to revisit this matter.” He concluded that, “No-one watching this program could emerge from that undisturbed and we don’t either.”

At the Commonwealth Heads of Government Meeting last October in Perth, when Sri Lanka’s fitness to hold the next meeting was raised, Prime Minister Julia Gillard responded, “On the question of human rights abuses and allegations of those abuses in Sri Lanka, the government’s position is we have consistently raised our concerns about human rights questions in the end stage of the conflict. These need to be addressed by Sri Lanka.”

Australia’s relationship with Sri Lanka has been somewhat complicated by the boatloads of ethnic Tamils heading to Australia and Australia’s cooperation with the Sri Lankan government to prevent people-smuggling. But Canada has faced similar issues, and this has not stopped Canada from speaking out strongly about accountability.

With a Human Rights Council session approaching in March, now is the time for the Australian government to publicly renew its concerns about accountability for abuses during the conflict. Australia should show leadership in calling for the issue to be re-examined and  assessing the need for an independent, international investigation. Both Canada and the UK have already issued statements expressing concern that the LLRC’s report does not address the serious allegations of war crimes and calling for a credible independent mechanism. The Sri Lankan government has made it abundantly clear that it is not willing to impartially investigate these war crimes. So the international community needs to step in.

In April 2010 Australia issued a Human Rights Framework, saying the government will seek to “improve the protection and promotion of human rights at home, within our region and around the world.” While Rudd has spoken out strongly on Syria and Libya, he should show the same attention to human rights issues in Australia’s own region, and Sri Lanka would be the perfect place to start.

Elaine Pearson is deputy Asia director at Human Rights Watch. You can follow her on twitter @pearsonelaine

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Important steps for Indigenous constitutional recognition

A referendum to recognise Indigenous Australians and remove racially discriminatory provisions in the constitution now seems certain to proceed, with bipartisan support for a recently released expert report on the topic. The news was welcomed by Indigenous representatives at the Aboriginal Tent Embassy, which has marked its 40th anniversary.

As usual, Australia Day has prompted various discussions about Australia’s national identity. Renowned surgeon Dr Chalie Teo called on Australians to recognise that racism still exists and encouraged a kinder, bipartisan approach to refugees in his Australia Day speech, while Football coach and former player, Ron Barassi, has called for Australia Day to be moved to May 27 to commemorate the day Aborigines were given equal citizenship rights. A group of Catholic bishops has called for Australia’s politicians to celebrate Australia Day by giving asylum seekers a fairer go.

Five Victorians have died in car crashes relating to police pursuits in recent months prompting road safety experts to call for a change to an irrational policy that puts innocent lives at risk A police report into pursuits is due to be released soon.

A 27-year-old man has died in police custody in Alice Springs.  Witnesses allege that police officers bashed the man shortly before he died. The case highlights the problems of police investigating police, with the NT Chief Minister dismissing the family’s calls for an independent investigation.

Judges, legal and human rights organisations have called for an end to mandatory, five-year jail terms for convicted people smugglers. The HRLC’s Phil Lynch has labeled mandatory sentences ineffective, expensive and a violation of rule of law, while the Greens propose to introduce a bill to replace mandatory sentences of five years with a three year non-parole period.

The United Nations High Commission for Refugees has called on the federal government to introduce administrative reviews of ASIO decisions labeling refugees ‘adverse security risks’ which can result in indefinite detention without explanation or right of review. The UNHRC also expressed alarm at the coalition’s ‘turn back the boats’ policy, which would put Australia in breach of international law. Meanwhile, asylum seekers at Tasmania’s Pontville Detention Centre have called off their hunger-strike.

The Indonesian Human Rights Commission has launched an inquiry into the fatal police shooting of at least two demonstrators protesting against an Australian mining operation in Eastern Indonesia.  Meanwhile, Human Rights Watch’s ‘World Report 2012’ reports of a worsening of police violence in Papua and the Asian Human Rights Commission has accused military officers of arbitrarily arresting and torturing civilians based on false claims of rebel activity.

President Obama’s failure to keep his promise to close the Guantanamo Bay prison facility has been criticised by many, including human rights lawyer Elizabeth O’Shea who says Guantanamo represents an affront to the bedrock principles that underpin Western legal systems, including freedom from arbitrary arrest, the right to a fair trial and the presumption of innocence.

Documents released to The Saturday Age have revealed the extent to which the government, AFP and ASIO spy on protesters and lobby groups.

Greg Barns, National President of the Australian Lawyers Alliance, has made the case for a review of Victoria’s corrections model – and a humanised approach to prisoners – to promote rehabilitation and reduce recidivism.  The comments come in the wake of riots at Victoria’s Fulham Prison.

Tennis legend, Margaret Court, has sparked controversy by labeling homosexuality ‘immoral’ and a ‘sin’, and stating homosexuality is a choice. Court’s comments highlight broader societal prejudices, according to Senthorun Raj. Court’s comments were condemned by many, including tennis greats Martina Navratilova, Billie Jean King and queer commentator Doug Pollard.

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UN adopts new treaty protocol to enable children to have their human rights complaints heard by an expert international body

Children will be empowered to complain about violations of their human rights to an international body after the adoption by the General Assembly on Monday of a new Optional Protocol to the Convention on the Rights of the Child.

The Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure allows individual children to submit complaints regarding specific violations of their rights under the Convention and its first two optional protocols, one on the sale of children, child prostitution and child pornography, and the other on the involvement of children in armed conflict.

“Children will now be able to join the ranks of other rights-holders who are empowered to bring their complaints about human rights violations before an international body,” said UN High Commissioner for Human Rights Navi Pillay.

“We see every day examples of a wide range of human rights violations against children – from discrimination to child trafficking to all forms of physical or mental violence. I encourage States to sign this Optional Protocol to give child victims of such violations direct access to an international human rights complaints mechanism.”

The Optional Protocol was transmitted by the Human Rights Council to the General Assembly last June. It establishes a procedure to bring complaints under the Convention on the Rights of the Child similar to those that already exist for other core human rights treaties.

Upon receiving a complaint, the Committee on the Rights of the Child will examine it to determine whether the Convention has been violated. The Committee will guarantee that child-sensitive procedures and safeguards are put in place to prevent the manipulation of the child by those acting on his or her behalf under the Protocol.

While it is examining the complaint, the Committee may request the State to adopt interim measures to prevent possible irreparable damage to the child. It may also request protection measures to prevent reprisals, including further human rights violations, ill-treatment or intimidation, for having submitted such complaints. If the Convention is found to have been violated, the Committee will make specific recommendations for action to the State responsible.

“The new Protocol takes into consideration the particular, special needs of children,” Committee Chairperson Jean Zermatten said. “In fulfilling its functions under the Protocol, the Committee will be guided by the principle of the best interests of the child and will bear in mind the rights and views of the child.”

The Optional Protocol also provides for the Committee’s role in friendly settlement agreements and in ensuring follow-up to the recommendations made to States. It further provides that the Committee may initiate inquiries into grave and systematic violations of the Convention and its first two optional protocols.

The Protocol opens for signature in 2012 and will enter into force upon ratification by 10 UN Member States.

(Further detail about the process and deliberation can be found in the Foreign Correspondent report below.)

Source: The UN’s Office of the High Commissioner for Human Rights

Human Rights Watch’s World Report 2012 summarises human rights conditions in more than 90 countries and territories worldwide in 2011. It reflects extensive investigative work that Human Rights Watch staff has undertaken during the year, often in close partnership with domestic human rights activists.

The introductory essay examines the Arab Spring, which has created an extraordinary opportunity for change, and states the global community has a responsibility to help the long suppressed people of the region seize control of their destiny from often-brutal authoritarian rulers.

Of Australia’s neighbours, the report documents the worsening police violence and human rights situation in West Papua. Whilst acknowledging democratic progress in Indonesia over the past 13 year, HRW says serious human rights concerns remain and while senior officials pay lip service to protecting human rights, they seem unwilling to take the steps necessary to ensure compliance by the security forces with international human rights and punishment for those responsible for abuses. The report also criticises the Sri Lankan government for failing to conduct credible investigations into alleged war crimes by security forces.

Source: Human Rights Watch

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Human rights check for new laws

The Attorney-General’s department has posted a fact sheet online about the Human Rights (Parliamentary Scrutiny) Act 2011 that came into effect on 4 January.

Attorney-General Nicola Roxon said human rights will be bought into sharper focus in the Parliament this year with all new laws to be checked to see if they stack up against human rights obligations.

“Our focus is on ensuring that key principles of freedom, respect, equality, dignity and a fair go for all Australians are considered in everything the Commonwealth Parliament does,” Ms Roxon said. “Ensuring that new laws have considered the protection and promotion of human rights is long overdue.”

The Human Rights (Parliamentary Scrutiny) Act 2011 requires all new bills and disallowable legislative instruments to be accompanied by a ‘Statement of compatibility with human rights’. Statements will assess compatibility against the seven main United Nations human rights treaties to which Australia is a party.

The Act also establishes a Parliamentary Joint Committee on Human Rights-the first Commonwealth Parliamentary Committee dedicated solely to human rights scrutiny – which will be established by a resolution of appointment in the Autumn 2012 Parliamentary sittings.

The HRLC said the new laws, passed by the Federal Parliament on 25 November, will provide a modest but critical contribution to the legislative and institutional protection of human rights, and will play an important role in human rights education and acculturation

“The Federal Parliament has taken a critical step in respecting and promoting human rights,” said Ben Schokman, the HRLC’s Director of International Human Rights Advocacy, “Although it falls short of enshrining human rights in a national charter or bill of rights, it is an important step in the right direction. It will ensure the Federal Parliament will be more accountable and transparent about the human rights impacts of new legislation.”

Proposed Greens’ amendments to the Migration Act 1958 to abolish mandatory sentences for people smuggling offences are essential to protect human rights and the rule of law, according to the Human Rights Law Centre.

“There is no place for mandatory sentencing in a healthy democracy governed by the rule of law,” said Rachel Ball, the HRLC’s Director of Policy and Campaigns.

The Bill to be introduced by Greens Senator Sarah Hanson-Young seeks to remove the mandatory sentence of 5 years with a 3 year non-parole period that flows from the offence of aggravated people smuggling.

Ms Ball – who last November gave evidence about the laws to the Senate Legal and Constitutional Affairs Committee – said the mandatory sentencing requirements of the Act prevent judges from exercising common sense or discretion. The laws have recently been criticized by one judge as imposing “savage penalties upon the ignorant, who are simply being exploited by organisers”.

“We’re not talking here about the organisers of people smuggling operations. These are generally young men or boys recruited from small Indonesian villages with the promise of a bit of cash for jobs like cooking rice,” Ms Ball said.

Mandatory sentences for people smuggling offences contravene the prohibition on arbitrary detention and the right to a fair trial contained in the International Covenant on Civil and Political Rights. These principles require that the punishment fit the crime, but mandatory sentencing prevents the Court from differentiating between serious and minor offending and from considering the particular circumstances of the individual.

The HRLC is urging MPs of all parties to use Senator Hanson-Young’s Bill as an opportunity to fix flawed legislation that puts Australia out of step with other modern democracies.

“Even the Government majority on the Senate Legal and Constitutional Affairs Committee has expressed concern regarding the impacts of the application of mandatory sentencing on individuals hired as boat crew for people smuggling vessels and has recommended that the Attorney-General review the legislation,” Ms Ball said.

“This regime threatens to see hundreds of impoverished Indonesian fishermen and boys jailed for a minimum of 3 years. It violates human rights, costs taxpayers tens of millions of dollars and is likely to have no impact on people smuggling. It’s time we fixed it,” Ms Ball said.

Community based organisation, Justice Action, has launched a paper ‘Pricking the Bubble Around Prison Needle and Syringes Programs’ after an exhaustive consultation with prison stakeholders and researchers of national standing.

“Unfounded fears and misinformation have deliberately been used to prevent prisoners accessing fresh needles and syringes,” Justice Action Coordinator Brett Collins said, “In fact, the risk of contracting hepatitis C from a needle-stick injury is only 1 in 200 – significantly less than the risk of driving and dying in a car accident at 1 in 83.”

“These are some of the findings of research presented on the eve of an ACT Government decision on the Moore Report” said Mr Collins.

“This risk analysis disproves the myth that prison staff would be less safe. In fact the prison becomes healthier with greater respect given to staff. There has never been a needle-stick attack against prison guards in dozens of prisons across 10 countries with NSPs,” Mr Collins said.

“Opposition to the NSP by some staff and unnamed ex-prisoners are an expression of the inhumanity in the prison culture, suggesting that prisoners are irrational and don’t want to be healthy. This perpetuates the stereotype of them not being part of the community – the ‘others’ from whom we must be protected. It is the structural effect of building a cage for humans” said Mr Collins.

“Justice Action opposed the new ACT prison, saying that it would become a festering sore spreading its sickness by isolating people from their communities, cross fertilising their problems and increasing crime. But naïve supporters argued that the Alexander Maconachie Centre would be human rights friendly. It is time to abandon the failed experiment” said Mr Collins.

“The Moore Report found that more than 50% of prisoners have hepatitis C and a quarter had injected in the previous month. An HIV outbreak in such a environment is just a matter of time despite the clear obligations under ACT law” said Mr Collins.

Source: Justice Action

From 1 February 2012, same-sex couples will be able to apply to the Australian Government for a certificate that enables them to marry overseas.

When a couple wishes to marry overseas, they must usually apply to the Australian Government for a Certificate of No Impediment (CNI). The CNI confirms to the government in the country where the couple plans to get married that the Australian Government see no obstacle to the marriage.

Currently, the Australian Government refuses to issue CNIs to same-sex couples wanting to get married overseas.

“PIAC applauds Attorney-General Nicola Roxon for changing this policy. It is an important milestone towards achieving equality for same-sex couples,’ said Edward Santow, chief executive of the Public Interest Advocacy Centre (PIAC).

“There is no question that this policy discriminates against same-sex couples, given that a heterosexual couple is generally able to obtain a CNI as of right.’

“Concerns have been raised about the legality of the current discriminatory policy, and PIAC has been working with Australian Marriage Equality on this issue.’

“Our work with Australian Marriage Equality has highlighted that the current policy has very damaging flow-on effects. For example, some same-sex couples have been unable to access entitlements offered by foreign governments in areas like health care and immigration because the Australian Government has obstructed them from getting married overseas,” Mr Santow said.

“By refusing to issue CNIs to same-sex couples wishing to marry in a foreign country, Australia was forcing its own discriminatory approach onto other countries. The Attorney-General’s decision is a step in the right direction.”

Attorney-General, Nicola Roxon, said it was an important change that will allow same-sex couples to take part in overseas marriage ceremonies, and be considered married according to the laws of that country.

Primary source: Public Interest Advocacy Centre

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Victoria considers options to halt rising rates of assaults against women

The Victorian Government is set to develop a three year Action Plan to address the issue of violence against women and their children.

The plan, to be consistent with the United Nations Declaration on the Elimination of Violence Against Women, will affirm that violence against women constitutes a violation of the fundamental rights and freedoms of women.

The Minister for Women’s Affairs, Mary Wooldridge, said that while family violence and sexual assault will remain a key focus for the Victorian Government, the Action Plan will also incorporate other serious forms of violence against women such as “cyber-bullying, stalking, sexting and sex trafficking”.

The Victorian Government is launching a period of consultation to inform the development of the Action Plan, which will set out objectives, areas of focus and action into the future.

“After taking on board the views of experts in the field and women who have experienced violence, the Action Plan will be a comprehensive framework to address what is the world’s most prevalent human rights abuse; violence against women and their children,” Wooldridge said.

According to research compiled by Dr Michael Flood from the Australian Research Centre in Sex, Health and Society at La Trobe University, up to one-half of Australian women will experience physical or sexual violence by a man at some point in their lives.

Source: Pro Bono Australia

The Executive Officer of the Victorian Federation of Community Legal Centres and spokesperson for Smart Justice, Hugh de Kretser, has urged the Victorian Government to look to New South Wales for valuable lessons in prison policies.

In a recent opinion piece Mr de Kretser highlighted the NSW Attorney-General’s recognition that building more prisons is expensive and does little to make a better style and his desire for spending to shift to reducing incarceration rates.

While NSW is cutting its prison population, closing jails and investing in reoffending reduction programs, Mr de Kretser argues Victoria’s tendency to criticise “hopelessly inadequate sentences” and promise longer prison terms and reduced court discretion is likely saddle the state with a prison legacy that will suck billions of much needed taxpayer funds into a populist policy sinkhole.

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Australian Human Rights Case Notes

Charter requires consideration of ‘special circumstances’ of alleged infringement offenders

Taha v Broadmeadows Magistrates’ Court & Ors; Brookes v Magistrates’ Court of Victoria & Anor [2011] VSC 642 (16 December 2011)

Summary

The Supreme Court has held that infringements officers and courts may have a duty to inquire whether a person has ‘special circumstances’ – such as intellectual disability or mental illness – before imprisoning that person in lieu of payment of unpaid fines. This duty arises under section 160 of the Infringements Act when read in conjunction with the right to liberty, the right to a fair hearing and the right to equality before the law under the Victorian Charter.

Facts

On 16 December 2011, Justice Emerton overturned an order that a person with an intellectual disability who had failed to pay fines should be jailed. Mr Taha had been unable to meet repayments under an imprisonment in lieu order pursuant to section 160 of the Infringements Act 2006 (Vic). On 12 January, the OPP filed Applications for Leave to Appeal.

Mr Taha appeared at Broadmeadows Magistrates Court in relation to $11,250.20 of unpaid fines – mostly public transport matters – in 2009. Unbeknownst to the duty lawyer or Court at the time, he had an intellectual disability and was on a Justice Plan – an order under the Sentencing Act, which is available only to persons with intellectual disability. The Magistrate made an order under section 160(1) of the Infringements Act that he pay the fines in instalments of $80 per month or face automatic imprisonment. Mr Taha, a disability support pensioner, did not pay the outstanding amount beyond $1280. The Sheriff contacted him indicating he would be imprisoned for 81 days and Mr Taha consequently sought the assistance of Victoria Legal Aid.

Victoria Legal Aid sought judicial review of the section 160 order on behalf of Mr Taha in the Supreme Court. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) intervened in support of Mr Taha’s arguments that his Charter rights under sections 8, 21 and 24 of the Charter – recognition and equality before the law, liberty and fair hearing – were infringed. The Broadmeadows Magistrates’ Court took an unusually active role in proceedings, opposing the application for judicial review.

Decision

Her Honour found there to be first, a denial of procedural fairness and second, a jurisdictional error, in that the Magistrate did not consider whether sub-section 160(2) applied. Sub-section 160(2) enables Magistrates to dismiss fines if people have ‘special circumstances’. ‘Special Circumstances’ are defined in the Act as: any mental or intellectual disability, disorder, disease or illness or a serious addiction to substances, which render a person unable to understand that they are offending or control their conduct. Alternatively, it may be homelessness, which leads to inability to control conduct. Sub-section 160(3) allows dismissal if imprisonment would be excessive, disproportionate and unduly harsh. Mr Taha had in fact had subsequent fines revoked on the grounds of his special circumstances.

Mr Taha’s counsel argued for a ‘unified’ approach to section 160, meaning that the possibility of dismissal under sub-sections 160(2) and (3) must be considered before an imprisonment in lieu order is made under sub-section 160(1). Her Honour held that such a unified approach was supported by the Charter rights to liberty, a fair hearing and to equal protection of the law. Invoking principles of indirect discrimination, Her Honour held that the right to equality under section 8 of the Charter meant that the Court may be required to make inquiries of the infringement offender aimed at ascertaining whether subsections 160(2) or (3) applied. She stated:

It is in the nature of an intellectual disability or a mental illness that it may prevent the offender from  . . . raising the condition with the Court. It would defeat the purpose  . . . if it could only be enlivened by the actions of a person burdened by a condition that may disable them from forming and exercising the necessary judgement to do so.

In finding a duty to inquire (a duty, which is rarely applied in our adversarial system), Her Honour recognised:

• the requirement of special treatment for people with intellectual disabilities, which is ‘reinforced’ by section 8(3) of the Charter;
• that the relevant inquiries, such as of the type of Centrelink benefit Mr Taha received or whether he was on a Justice Plan, could easily be made; and
• that representation by duty lawyers with significant workloads does not necessarily constitute ‘adversarial’ justice;  whereby it can be assumed that all relevant facts are before the Court.

Relevance of the Victorian Charter

In focusing on a substantially just outcome, which recognises the difficulties faced by people with disabilities in their interaction with the legal system, Her Honour’s decision is most welcome and a successful appeal against it will be a retrograde step for human rights as recognised in the Charter.

Aside from the rights pertaining more specifically to persons with disabilities, the consolidated cases of Taha and Brookes highlight a more general and grave systemic problem in Victoria’s legal system – the absence of an accessible avenue of merits-based appeal against orders to imprison people for non-payment of fines. Victoria Legal Aid, whose duty lawyers see an increasing number of imprisonment in lieu orders being made, is lobbying for introduction of such an appeal right.

The decision can be found online at: http://www.austlii.edu.au/au/cases/vic/VSC/2011/642.html

Sophie Delaney is a Senior Lawyer with Victoria Legal Aid’s Civil Justice Program

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The Centre has featured in the following media coverage since the last Bulletin:

• Gareth Boreham, ‘People smuggler laws under fire’, SBS World News, 19 January 2012
• Michael Gordon, ‘Call to end people smugglers’ 5-year terms’, The Age, 19 January 2012
• Nikki Canning, ‘Call to amend people-smuggling sentences’, SBS World News, 19 January 2012
• Ben Lewis, ‘Airlines reject ‘fat tax’’, Ten News, 12 January 2012
• Sean Berry, ‘Defence cover-ups exposed’, 7 News, 12 January 2012
• Jonathan Creek, ‘Prison Lawsuits’, Today Tonight, 02 January 2012
• Phil Lynch, ‘Now is Roxon’s chance on human rights’, The Drum (ABC online), 30 December 2011

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Public Seminar: The Relevance of the Convention Against Torture in Preventing and Redressing Violence Against Women

5pm Wednesday 22 February, Lander & Rogers, Melbourne

Come along to this seminar and find out how the Convention Against Torture can be used to increase transparency and accountability and improve law, policy and practice in the area of violence against women. Expert speakers include, Claudio Grossman – Chair, United Nations Committee Against Torture and  Fiona McCormack – CEO, Domestic Violence Victoria.

For further information and to register a place visit: http://www.hrlc.org.au/events/upcoming/

14-15 February, Sydney

The Australian Human Rights Centre and the Faculties of Arts and Law at the University of New South Wales are convening a conference to mark the 10^th anniversary of the operation of the International Criminal Court. It will examine the contribution of the ICC to the achievement of gender justice, and analyse the uneven participation of Asia Pacific states within the ICC framework.

Speakers include ICC President, Judge Sang-Hyun Song, ICC Registrar Silvana Arbia, ICC Deputy Prosecutor (now Prosecutor-elect) Fatou Bensouda, Christian Wenaweser, immediate past President of the Assembly of States Parties, and a number of leading academic, government and civil society experts on the Court.

Further details including current program and registration details at www.justiceforall.unsw.edu.au

To coincide with the above mentioned conference, American playwright and women’s rights activist, Eve Ensler, will deliver the Australian Human Rights Centre Annual Public Lecture at the Sydney Theatre Company on 12 February 2012.

Further details at www.justiceforall.unsw.edu.au

Implementing Human Rights in Closed Environments

20-21 February 2012, Monash University Law Chambers, Melbourne

Where liberty is restricted in closed environments, such as prisons, police cells, immigration detention, and closed psychiatric and disability settings, the potential for human rights abuses is high. The management of such environments requires a delicate balance between the rights of individuals, and the safety and security of others in the closed environment and the broader community. This conference will bring together eminent international and national speakers to examine how human rights are implemented and monitored in closed environments. Further information is available here.

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North Australian Aboriginal Justice Agency

NAAJA provides legal aid for Indigenous people in the Top End of the Northern Territory, with offices in Darwin, Katherine and Nhulunbuy. NAAJA currently has a 12 month vacancy for an Advocacy Manager within our Advocacy Section at our Darwin Office. This role is to coordinate NAAJA’s law reform and policy activities and oversee the delivery of community legal education and information as well as the Prisoner Support and Indigenous Throughcare Projects (pre & post prisoner release programs).

CAALAS is seeking a Welfare Rights Legal Officer as part of its Welfare Rights Outreach Project which provides legal advice, casework, community legal education and policy input regarding welfare rights issues, in particular relating to the Northern Territory Emergency Response and related initiatives such as income management.

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Closing the gap: the new international complaints mechanism for children’s rights violations

On 19 December 2011, more than twenty years after the adoption of the Convention on the Rights of the Child, ratified by all United Nations (UN) Member States but three – the USA, Somalia and South Sudan – the United Nations adopted a new Optional Protocol to the Convention establishing a communications procedure for violations of children’s rights (OPCRC).

Until then, the Committee on the Rights of the Child was the only UN treaty body that did not have the competence to receive and examine allegations of violations under the instruments it is tasked to monitor, namely the Convention, the Optional Protocol on the sale of children, child prostitution and child pornography (OPSC) and the Optional Protocol on the involvement of children in armed conflict (OPAC).

While children and their representatives could use existing complaints mechanisms established under other international instruments to pursue many of their rights, they were deprived from an international remedy that would hold their State accountable for the violation of their unique rights under the Convention, OPSC and OPAC. Moreover, existing complaints mechanisms, which were designed with adults in mind, lack the needed adjustments to ensure that children can access these remedies despite their special and dependent status.

To strengthen children’s status as right holders and ensure that they can bring a complaint to an international committee of experts when domestic complaints mechanisms fail to provide an effective remedy for violations of their rights, or when no such remedies exist, a coalition of child rights NGOs decided to launch an international campaign for a communications procedure under the Convention in 2006.

In 2008, to strengthen the coordination of advocacy activities and raise greater awareness about this initiative, the coalition was established as a NGO Working Group for the Convention. It met with the Committee and the UN Deputy Commissioner for Human Rights to discuss the campaign and gain their support. It also launched an international petition and held a number of side events at the UN Human Rights Council.

By 2009, a core group of States supporting the initiative was formed and a resolution establishing an Open-ended Working Group to discuss the possibility of elaborating an OPCRC on a communications procedure was successfully presented and adopted by the Council. With no State objecting to the need for such an instrument, on 24 March 2010, the Council gave the Working Group the mandate to elaborate the Optional Protocol within ten working days and requested the Chairperson of the Working Group to prepare a first draft. The Working Group met in December 2010 and February 2011 and a final draft Optional Protocol was adopted by the Council on 17 June 2010.

One of the key elements advocated by the NGO Working Group was the inclusion of ‘collective communications’, i.e. the possibility for NGOs, child ombudspersons and national human rights institutions to submit complaints alleging any unsatisfactory application of the rights under the Convention and/or its Optional Protocols without identifying any individual victim, following the model of the Additional Protocol to the European Social Charter. This new mechanism sought to address the concerns over confidentiality, revictimization and protection of children throughout the procedure, enable the Committee to prevent violations – for example, by examining a particular law that could reasonably be expected to infringe on children’s rights –  and reduce the necessity to consider large numbers of communications from individual child victims or groups that give rise to the same factual and legal questions.

Ten days of negotiation were however not enough to reach a consensus allowing for such an innovation. While the Chairperson could have asked the Council to extend the mandate of the Working Group, he took the view that the Protocol had to be finalised within the Working Group’s first mandate. The collective communications mechanism was deleted in the last day of the negotiations.

The rush to reach an agreement also led States to mainly use existing language and, in particular, provisions found in the latest international communications procedure, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

But the intense advocacy conducted by the NGO Working Group also led to a number of important victories. The Protocol will automatically apply to all the international child rights instruments ratified by the State party, namely the Convention and/or the OPSC and/or OPAC. Child complainants will not have to comply with national legal capacity requirements or be subject to legal representation requirements, despite insistent requests from a number of States. The OPCRC also includes some innovative provisions that will allow the Committee to interpret its provisions in a child sensitive manner.

The new Optional Protocol will be open for signature and ratification at an official ceremony, likely to take place on 28 February 2012 in Geneva, Switzerland. It will enter into force upon ratification by ten UN member states.

Anita Goh is Advocacy Officer of the NGO Group for the CRC – Coordinator of the international campaign for a communications procedure under the Convention on the Rights of the Child

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Reviewing detention from prison architecture to the grounds for incarceration

Director of the National Pro Bono Resource Centre, John Corker, argues that a review of our laws and practices surrounding detention should be at the top of Australia’s agenda for promoting and protecting human rights.

If I was AG I would initiate a review of Australia’s detention laws and systems, covering everything from the design of our prisons to finding a solution for those in indefinite detention.  I would ask, “Are there persons that have been detained because they are unpopular with certain parts of our society?” Is detention really necessary, what are the alternatives?

As Winston Churchill said, “Nothing can be more abhorrent to democracy than to imprison a person or keep him in prison because he is unpopular. This is really the test of civilization.” The right to liberty is one of the most fundamental human rights. People should only be deprived of their liberty as an absolute last resort.

Security of the community is the key reason advanced for deprivation of an individual’s liberty but to quote Anthony Burke, a lecturer in Politics at the University of Adelaide:

“Security is a simple, reassuring word, but behind its door lies a long and terrible corridor; the despair of the asylum seeker, the suicide attempts, the riots, the self-mutilation, the protest, the voicelessness, and the lack of understanding.”

These issues take us to the heart of what human rights are about, a sense of fairness, of social justice. As Australia’s leading law officer it would be my role to lead on this issue and I would put it on the agenda of the new Standing Council of Law and Justice.

Broadly speaking people are detained in Australia under laws dealing with crime, immigration, mental health, and contagious diseases. Australia has not codified the requirements for deprivation of a person’s liberty as the UK has in Article 5 of the Human Rights Act, where the six defined exceptions to a person’s right to liberty have provided a vital framework against which to test its laws. These principles provide a good starting point.

High on my priority list for attention would be those that are incarcerated because they are:

• declared unfit to stand trial due to intellectual disability. I note the case of Marlon Noble in WA who has been held in prison for almost a decade on this basis.
• detained indefinitely on the basis of a mental disorder
• asylum seekers subject to prolonged detention. I would seek to return at least to the max limit of detention being 273 days as it was prior to 1994.
• asylum seekers who are in indefinite detention because they are either considered ‘stateless’ or denied a fair hearing on their security risk profile due to the state’s refusal to provide them with details of the facts that have led to an adverse security finding.
• children of asylum seekers
• young offenders

This does not mean that others subject to prolonged detention such as those convicted of terrorism offences, violent and sexual offenders subject to indefinite detention, or the criminally insane should not also be closely examined to see what alternatives exist for their liberty but the cases above stand out as matters that could be realistically tackled.

As Justice Michael Kirby said in the High Court case of Al-Kateb, that declared that the federal government can detain rejected asylum seekers indefinitely, the majority view had “grave implications for the liberty of the individual in this country which this court should not endorse”.

Legislative and judicial support for indefinite detention is a recent phenomenon in Australia but is fundamentally unfair and contrary to many human rights instruments notably Article 9 of the ICCPR as being ‘arbitrary’ if it is unduly prolonged or not subject to periodic review.

Whilst it is difficult to judge whether a person is dangerous to the community this needs to be carefully balanced against the harms of indefinite detention – for example, loss of employment and family contact, loss of dignity and self-esteem, institutionalisation and mental illness.

In the criminal law over the past 20 years we have witnessed the winding-back of the rights of accused persons, the tightening of bail laws, the creation of unique anti-terrorism offences and orders, mandatory sentencing laws, and the parliamentary fettering of the judicial sentencing discretion, all increasing state power over the liberty of the individual and leading to greater prison populations.

The cost of running prisons has become a significant issue for the States and Territories and the cost of detention centres a significant issue for the Commonwealth. This economic paradigm provides a new opportunity for a ‘roots and branch’ review of our approach to detention in Australia.

As AG I would aim to work with the States to agree on best practice for Australian prisons and use this to drive reform. Best practice should address employment, health, recreation and exercise, sanitation and security.

I would seek to expand, develop and implement as many as possible alternatives to detention and support programs where the emphasis is on the long term welfare of the detainee (many of whom have mental illnesses), rehabilitation of prisoners rather than punishment.  I would seek to expand custodial diversionary programs and embed restorative justice in the criminal justice system. I would insist on clear time limits for due process in all mental health legislation.

And last but not least I would engage Australian architect Glen Murcutt to design an inspired Australian prison or detention centre with adequate space, light and ambience.  A well-designed modern construction can create a positive atmosphere both for detainees and staff, important not only for those on remand but to assist detainees to leave the institution at the end of their time prepared mentally for the challenge of resuming life outside.  Such a project could really help to change mindsets and culture.

Australia started as a penal colony and the culture of punishment has lived on in large parts of the community particularly in our treatment of Aboriginal people.

We have quite a way to go to develop a more tolerant society and as AG a full scale review of detention laws in an international human rights framework would be my starting point.

John Corker is the Director of the National Pro Bono Resource Centre

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In a major submission to the Commonwealth Attorney-General, who is reviewing the laws, the Human Rights Law Centre has called for the Government to use this critical opportunity to address gaps in the laws and strengthen existing protections.

The HRLC’s Director of Policy and Campaigns, Rachel Ball, said there are a number of federal anti-discrimination laws in Australia and the Government’s decision to consolidate them into a single Act should be welcomed. However, Ms Ball warned that without updating the substance of the laws being consolidated, existing flaws would continue to hamper Australia’s efforts to eliminate discrimination and continue to put Australia in breach of international law.

“There’s not much point if the process is simply going to result in all the old outdated laws being rolled into a ‘new’ Act. This opportunity to weed out existing problems should be used to also modernise and strengthen Australia’s equality laws to ensure they meet our international human rights obligations,” Ms Ball said.

The HRLC urges the Government to make certain the new Act includes a positive duty to eliminate discrimination and promote equality, similar to the current laws in Victoria and the United Kingdom.

“To create a society free from discrimination, you need your equality laws to be proactive. So as well as providing more accessible and user-friendly remedies for individual cases of discrimination, laws needs to adress structural inequalities if they are to bring about substantive equality,” Ms Ball said.

Specifically, the HRLC recommends equipping the Australian Human Rights Commission with investigative and compliance powers allowing the commission to issue compliance notices to organizations and enter binding agreements with them.

The HRLC’s submission builds a case for expanding protections to cover all areas of public life and additional attributes, including a person’s status as homeless or a victim of domestic violence.

“Research has shown that discrimination is a major causal factor of homelessness and can systematically exclude people from access to goods, services, the justice system, health care, employment and housing. This is something that improved equality laws could help to address,” Ms Ball said.

The HRLC also calls on the Federal Government to reconsider its position regarding permanent exemptions for specific areas of public life – including the exemption for religious organisations which the Government has indicated it will not be altering.

“Current exemptions for religious bodies are arbitrary and outdated. Religious bodies should not be above the law, yet current laws effectively give them a free license to discriminate. This needs to be overhauled,” Ms Ball said.

The submission provides an overview of how existing technical and legal barriers to the elimination of discrimination could be removed. For example, sharing the burden of proof between a person making a complaint and the respondent along with reforming the problematic comparative tests for discrimination, would make equality law more accessible and therefore tangible for general members of the public.

The Government is due to release an exposure draft of the legislation soon.

A summary of the HRLC submission as well as a full copy can be found online at:  http://www.hrlc.org.au/content/realising-the-right-to-equality/

For further information or comments please contact:
Rachel Ball, HRLC Director of Policy and Campaigns, on 0434 045 919 or rachel.ball@hrlc.org.au

“All political parties should show principled leadership and support the Expert Panel’s recommendations. The evidence is clear that Australians support equality, fairness, recognition and respect for Aboriginal and Torres Strait Islander peoples,” says the Human Rights Law Centre’s Director of International Human Rights Advocacy, Ben Schokman.

“Not all citizens are treated equally under the Australian Constitution. While it is commonly accepted that racial discrimination has no place in the Australian community, our Constitution continues to allow discrimination on the basis of race.”

“Given the Australian Constitution was drafted in the 1890s, it is not surprising that our foundational document still reflects some the racist attitudes of the time,” Mr Schokman said. “The Expert Panel’s recommendations provide us with a rare opportunity to update the Australian Constitution to better reflect our community’s contemporary values.”

The Expert Panel, which consists of Aboriginal and Torres Strait Islander leaders, constitutional experts and politicians from all parties, carried out an in-depth community consultation process, travelling to 84 urban and remote locations to host public events and also receiving 3,600 public submissions.

“Throughout the consultation process, Australians have made it clear that they want meaningful recognition for Aboriginal and Torres Strait Islander peoples in the constitution and that they want any racist elements removed. The Human Rights Law Centre also strongly considers that the Australian Constitution should promote equality and prevent and protect against racial discrimination,” Mr Schokman said.

In its submission to the Expert Panel in September 2011, the Human Rights Law Centre identified gaps in Australia’s compliance with its international human rights obligations, highlighting the need for constitutional reform.

“In recent years, a number of highly respected, independent international human rights bodies and experts have made specific recommendations in areas where Australia is failing to meet its legal obligations, particularly the rights of Aboriginal and Torres Strait Islander peoples. The Expert Panel’s recommendations show that Australians agree. Recognition and equality in the Australian Constitution would be a small but crucial step to help address the serious disadvantage and discrimination that is experienced by many Aboriginal and Torres Strait Islander peoples.”

A copy of the Human Rights Law Centre’s submission to the Expert Panel is available at http://www.hrlc.org.au/content/topics/indigenous/towards-constitutional-recognition-for-aboriginal-and-torres-strait-islander-peoples-29-sept-2011/.

Download the full edition of the Bulletin in PDF.

This edition of the Bulletin includes:

• Opinion piece by the HRLC’s Phil Lynch on a human rights vision for the new Attorney-General
• A wrap up of the month’s human rights related news coverage
• International Human Rights Developments on the top 10 issues in business and human rights in 2012
• National Human Rights Developments, including the annual Human Rights Awards and the Australian Human Rights Commission’s new website Tell Me Something I Don’t Know
• State-based Human Rights Developments, including a call from Victorian community lawyers for stronger human rights protections and time for the ACT to lead on rights again
• Australian Human Rights Case Notes on special measures and discrimination under the Victorian Charter and new Equal Opportunity Act
• A range of International Human Rights Case Notes including from the European Court of Human Rights, UN treaty bodies, Canada, the UK and the High Court of Kenya
• Information about the HRLC ’s policy and case work, including an update on the Occupy Melbourne legal challenge and the National Human Rights Action Plan
  
• HRLC Media Coverage
• Details of forthcoming human rights seminars and events
• Human rights resources
• Information about human rights jobs
• Foreign Correspondent by Laila Matar, UN Advocacy Representative at the Cairo Institute for Human Rights Studies
• ‘If I were Attorney-General’ in less than 100 words from some of Australia’s leading human rights advocates, activists and academics
  

A human rights vision for the new Attorney-General

In her maiden speech to Parliament in 1998, Australia’s new Attorney-General spoke of her long-term vision for the nation’s legal system. For Nicola Roxon, values of fairness, dignity and equality were recurring themes. The Australian Human Rights Commission will no longer be “chronically underfunded”, she said. Women will be “truly equal”. Protected by “workable sex discrimination legislation”, they will be appropriately represented as judges and around boardroom tables.

It is a vision which many Australians share. The 2009 National Human Rights Consultation, which received over 35,000 public submissions, demonstrated that human rights matter deeply to Australians, resonating with democratic values such as the rule of law and a fair go.

The Consultation also demonstrated, however, that our laws and institutions do not adequately protect human rights, particularly for vulnerable or disadvantaged groups. There was a strong view, it found, that “we could do better in guaranteeing fairness for all within Australia and in protecting the dignity of people who miss out”.

Thirteen years after her maiden speech, Attorney-General Roxon is now in a position to make her prescient vision a reality.

So what should be the priorities for an Attorney-General committed to human rights, equality and the rule of law?

First, the Attorney-General should enhance Australia’s anti-discrimination laws. Strengthened equality laws would contribute to social cohesion, higher productivity and participation, and improved outcomes in areas including education and health. The equality law consolidation process initiated by Roxon’s predecessor, Robert McClelland, is an important opportunity to strengthen Australia’s complex anti-discrimination regime, with the government keen to streamline laws and reduce their regulatory burden. The key measure of Roxon’s success, however, will be the effectiveness of the revised laws in preventing and remedying discrimination and promoting substantive equality.

Second, and again building on the positive work of McClelland, the new Attorney-General should strengthen the protection of human rights in law. The Human Rights (Parliamentary Scrutiny) Act, passed on parliament’s last sitting day this year, is a modest but important step in this direction. It requires that all new legislation be developed with fundamental human rights and freedoms in mind. The Human Rights Framework of which this new law is part is due to be reviewed in 2014. Roxon should use this review to lead the enactment of a national Human Rights Act.

It is in the interests both of persons deprived of liberty and also the broader community that all places of detention promote rehabilitation and social integration. Unfortunately, many places of detention – whether prisons, psychiatric hospitals, police cells, immigration detention centres or disability facilities – fall well short of this aim. As a third priority, therefore, the Attorney-General should enhance oversight of places of detention by immediately ratifying the Optional Protocol to the Convention against Torture. The Optional Protocol aims to prevent ill-treatment by establishing national and international systems for independent monitoring and inspection of all places of detention. Australia signed the Optional Protocol in May 2009. Since that time, however, progress has been slow, with wrangling between the states and the Commonwealth about the modest bill for detention oversight. This is despite evidence as to the very high social and economic costs of failing to prevent and redress ill-treatment.

As a fourth priority, and as recently recommended by a Senate committee, the Attorney-General should order a review of people smuggling offences under the Migration Act. These are the provisions under which a number of vulnerable Indonesian children have been detained for extended periods in adult prisons. Such a review is necessary to protect the rights of children and ensure that the offences, which carry mandatory gaol sentences, are appropriate and effective.

As a fifth priority, the Attorney-General should take urgent steps to address issues of Aboriginal and Torres Strait Islander disadvantage and disenfranchisement. Drawing on her experience as Health Minister, Roxon should work with all Australian governments to include ‘justice’ within the key areas covered by the ‘Closing the Gap’ program. Just as there are targets to close the life expectancy gap, we need concrete targets to reduce Aboriginal and Torres Strait Islander imprisonment and re-offending.

Roxon should also work hard to ensure the success of a referendum to recognise Aboriginal and Torres Strait Islander peoples and guarantee against racial discrimination in Australia’s constitution. As the president of the Business Council of Australia recently wrote, such recognition will contribute in both a “symbolic and practical” way to equality and social wellbeing.

Of course, this is a far from comprehensive human rights agenda. There is much remedial work to be done in the reform of counter-terrorism laws, for example, and much agenda setting work in areas such as business and human rights. Together, however, principled leadership and energetic action in these priority areas could go a long way to realising the vision of a nation which respects and protects human rights – a vision shared by Nicola Roxon those thirteen years ago.

Phil Lynch is Executive Director of the Human Rights Law Centre

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Two coronial inquests into deaths in custody highlight need for urgent change

The Queensland coroner says urgent changes are needed in prisons, following the suicide of a female prisoner who had endured pain for a month having been denied medical pain relief. Meanwhile the New South Wales coroner has found authorities failed in their duty of care to three men who committed suicide at Sydney’s Villawood Immigration Detention Centre.

Former Prime Minister Malcolm Fraser and dozens of other public figures have called on Foreign Minister Kevin Rudd to make sure WikiLeaks founder Julian Assange is protected from ”rendition” to the United States.

A new poll shows that an overwhelming majority believes that all MPs should have the opportunity to vote their conscience on same sex marriage. The Herald /Nielsen poll showed that 81 per cent of people believe there should be a conscience vote on the issue. Meanwhile, Opposition leader Tony Abbot has given his strongest indication that he will not support moves for Liberal MPs to have a conscience vote.

A 17 year old boy who attempted to commit suicide has become the focus of a legal challenge into the prolonged detention of recognised refugees whilst they are awaiting ASIO security checks. The claim also raises issues regarding the duty of care Immigration Minister Chris Bowen has to unaccompanied children, particularly in relation to their mental health.

In an editorial the Daily Telegraph has called for the retention of jury trials, rejecting the assertion by Justice Peter McClellan of New South Wales that modern trials have become too complex for juries to adjudicate on. Justice McClellan noted that while previously juries merely had to deal with the testimony of witnesses now they have to deal with the conflicting testimony of scientists.

The United States Secretary of State Hillary Clinton has delivered a speech in strong support of gay and lesbian rights worldwide claiming the continued receipt of American foreign aid may depend on how a particular country treats its gay and lesbian communities.

Immigration Minister Chris Bowen, at the recent ALP national conference, won support for his proposal to increase Australia’s refugee intake while embracing offshore processing. The proposal was criticized by refugee advocates, including Julian Burnside QC and the ALP’s Left faction.

An Occupy Melbourne activist dressed in a tent costume to ridicule the banning of camping equipment being used as part of the ongoing protests had a police officer remove the tent costume, leaving her semi-naked. The protestor has accused the police officer of sexual assault.

A human rights group says at least 17 people died last week after police using helicopters fired on houses in the Indonesian province of West Papua. The attacks come in the same month as two people were reportedly shot as a result of Independence Day demonstrations and further clashes occurred with reports of two Indonesian police officers being killed by the OPM and the anti-terrorist brigade responding by setting fire to schools, a church and houses in the highlands. Greens Senator Richard Di Natale said Australia can no longer stand silent while West Papua burns.

Graham Bradley, the former President of the Business Council of Australia has suggested that the Constitution be amended to remove from its text “the last vestiges of racism”. In December 2010 Mr Bradley was appointed by Prime Minister Gillard to a panel to advise on appropriate constitutional recognition of the “traditional owners of the continent and waters”.

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What are the top 10 issues in business and human rights in 2012?

On International Human Rights Day, 10 December 2011, the Institute for Human Rights and Business released its list of the top 10 emerging business and human rights issues for 2012. Through its top 10 list, the IHRB seeks to address diverse aspects of how the ‘Protect, Respect and Remedy’ Framework and the Guiding Principles on Business and Human Rights can be implemented to achieve real change in corporate human rights performance over the coming year and beyond.

Issues which made the top 10 list for 2012 include:

• combating casualisation of labour and the erosion of workers’ rights;
• providing legal redress for business participation in human rights violations;
• putting children squarely on the business agenda;
• ensuring that companies respect human rights in cyberspace;
• recognising the importance of women’s rights in business;
• strengthening community consultation by business;
• engaging investors on the need for human rights due diligence;
• linking the fight against corruption to corporate respect for human rights;
• operating responsibly in high risk environments; and
• addressing the negative impacts of land acquisition and use on communities and nations.

In its list, the IHRB highlights a number of high profile developments from the past year which are likely to gain further attention during the course of 2012. For example, the list draws attention to human rights impacts associated with the use of internet and cell-phone technology during the Arab Spring uprisings and the principles developed by the Global Network Initiative to guide decision-making by information technology companies. It also highlights the recently launched UNICEF, Save the Children and the United Nations Global Compact Children’s Rights and Business Principles Initiative and the increasingly pressing need to develop tools to leverage the potential of the financial sector to facilitate rights realisation.

In addition to these recent developments, the top 10 list identifies a number of issues which have been firmly on the agenda for some time but remain prominent and significant. The list recognises significant issues such as the impact of changed political circumstances, such as the independence won by South Sudan, on activities in high risk environments, and also recent breakthroughs to address barriers to effective community consultation. The list further notes that the US Supreme Court is due to hear Kiobel v Royal Dutch Petroleum Co in 2012 to consider whether businesses can be held liable under the Alien Torts Claims Act.

With the recently established United Nations Expert Working Group on Business and Human Rights due to announce its work plan and formally commence work in January 2012, we can look forward to these and other business and human rights issues featuring more prominently on the international agenda in the year ahead.

The IHRB works to raise corporate standards and strengthen public policy around business-related human rights issues. Its top 10 list can be accessed at:  http://www.ihrb.org/top10/business_human_rights_issues/2012.html#

Catie Shavin is a lawyer and member of Allens Arthur Robinson’s Corporate Responsibility Group

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Leading Australians recognised in Australia’s annual Human Rights Awards

Ron Merkel QC has been announced as the winner of the prestigious 2011 Human Rights Medal at the Australian Human Rights Commission’s annual Human Rights Awards in Sydney. Meanwhile, a legal team comprising Allens Arthur Robinson, the Refugee and Immigration Legal Centre, Debbie Mortimer SC and Richard Niall SC were awarded the Human Rights Law Award for their outstanding legal advocacy for refugees and asylum seekers.

Commission President Catherine Branson QC congratulated Ron and all winners for their extraordinary efforts in protecting and promoting human rights in Australia.

“All winners and indeed all finalists should be treasured by all of us for the often selfless way in which they try to make Australia an even fairer and more equal society than it already is,” Ms Branson said.

“For 40 years, Ron Merkel has devoted himself to access to justice for people who are marginalised and disadvantaged. He has had a long and outstanding commitment to the promotion and advancement of human rights as a legal practitioner.

“Ron Merkel takes on cases that many others would avoid and his advocacy spreads far and wide including defending the rights of prisoners to vote in elections and protecting the rights of Indigenous Australians not to be racially discriminated against,” Ms Branson said.

The Medals were announced at a sold-out event in Sydney in celebration of International Human Rights Day. More than 200 entries were received for this year’s Awards with 40 finalists selected in 10 categories. Details of all winners and finalists can be found online here.

Source: Australian Human Rights Commission

Australian Human Rights Commission President Catherine Branson QC delivered the 2011 Human Rights Day Oration and announced a major new Commission initiative to build understanding and respect for human rights in Australia.

“I am proud to be able to launch an innovative online initiative today, known as Something In Common, which aims for greater community engagement with human rights issues,” Ms Branson said.

“In order to respond to the desire for human rights facts, as part of our Something In Common project we have developed a microsite – Tell Me Something I Don’t Know.

“Tell Me Something I Don’t Know presents a series of human rights facts that are arresting and sometimes shocking,” she said. “In addition, there are a number of engagement features where users have the opportunity to not only add their own stories to the site, but contribute to Australian film reviews that deal with human rights issues, respond to polls and commit to taking a number of online and offline actions.

“Something In Common seeks to build on these ideas to enable us to speak about human rights in ways that will inspire people to promote, defend and apply human rights in their daily lives through social media,” she said.

“It is impossible to refute the reach of social media and impossible to ignore it if human rights education and community engagement are to remain relevant.”

Source: Australian Human Rights Commission

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Community lawyers call for stronger human rights protections

The Victorian Government should strengthen existing protections under the Human Rights Charter in the spirit of Human Rights Week, says the Victorian Federation of Community Legal Centres.

A new Federal government report released on 9 December highlights a number of Australian communities whose human rights are threatened.

The Charter has been facing an uncertain future since the Scrutiny of Acts and Regulations Committee Report recommended winding back key aspects of its operation. The majority Coalition committee has been criticised for ignoring the overwhelming community support for the Charter expressed in submissions and evidence given to the inquiry. The Victorian Government is expected to announce its decision on the recommendations shortly.

“While Victoria has relatively good record of human rights protection, we still have a long way to go to ensure vulnerable communities have access to equal treatment,” said Federation Policy Officer Jacqui Bell. “Human Rights Week is an opportunity to celebrate the progress we have made in promoting fairness and equality, but also a chance to reflect on where we still need to do better.”

“It is the most vulnerable and marginalised members of our community who will be affected by any decision to wind back human rights protections under the Victorian Charter,” said Disability Discrimination Legal Service Manager Julie Phillips. “A recent report demonstrates that the quality of life for people with disabilities in Australia is the worst in the developed world with almost half living in or near a state of poverty. This is no time to be winding back human rights protections.”

“The Charter has been an effective tool for improving the lives of many Victorians, and we need to build on these positive developments by making sure people have access to justice for a broader range of human rights,” said Human Rights Law Centre Director of International Human Rights Advocacy Ben Schokman. “Human Rights Week is an appropriate time to recognise the positive impact of the Charter over the last five years, but that existing protections still need to be strengthened so all Victorians have access to the same fundamental human rights.”

Source: Victorian Federation of Community Legal Centres

At a gathering marking 20 years of the ACT’s anti-discrimination laws, the ACT Attorney-General, Simon Corbell, said he wants to widen the territory’s legal recognition of human rights so it includes economic, social and cultural rights. He said he would encourage his cabinet colleagues to make the ACT a leader again on rights legislation.

The Department of Justice and Community Safety has previously looked at the feasibility of including economic, social and cultural rights in the ACT’s Human Rights Act and Mr Corbell believes the Act, the nation’s first, should be expanded. He wants the territory government to adopt the recommendations of a report produced last year, on economic, social and cultural rights.

Meanwhile, the former ACT chief minister Jon Stanhope has also used a speech to mark Human Rights Week by urging the ACT Government to extend its human rights regime. Mr Stanhope said all deaths in custody should be covered by corporate murder laws.

Mr Stanhope believes Australia should follow Britain’s lead and introduce laws to allow negligence leading to a death in custody to be prosecuted.

“’There have been 27 deaths in immigration detention since 2000, with five in the last year, and there is a sense of growing concern about the mental health and treatment of detainees in privatised detention centres,” Mr Stanhope said. “These deaths are currently dealt with in coroners’ courts and in an ad hoc manner, state by state or territory, and mostly in a highly reactive way.’”

Such laws would mean authorities in charge of prisons, police lock-ups, immigration detention centres and psychiatric facilities would be liable for prosecution if their negligence results in the death of detainees.

Mr Stanhope also criticized the CPSU – the union representing prison guards – for opposing needle exchange programs in prisoners in the ACT.

Source: The Canberra Times

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Australian Human Rights Case Notes

Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act

Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011)

Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011)

The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011)

Summary

On 28 November 2011, the Victorian Civil and Administrative Tribunal delivered judgments in three matters, each dealing with applications for exemption from the Equal Opportunity Act 2010 (Vic) (EOA) to enable the limiting of employment in specified roles to Indigenous persons.

The Victorian Equal Opportunity and Human Rights Commission intervened under s 159 of the EOA in all three matters to provide assistance to the Tribunal, in particular in relation to the operation of the new special measures provision at s 12 of the EOA and the application of the new factors for consideration in deciding exemption applications at s 90 of the EOA.

These are the first decisions of their kind under the EOA which came into force on 1 August 2011. They provide detailed consideration of the operation of the special measures provision under the EOA and the right to equality under s 8 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Facts

Parks Victoria applied to the Tribunal for an exemption from certain provisions of the EOA to enable it to advertise for and employ only Indigenous persons, with preference to be given to members of the Wurundjeri Tribe Land Compensation & Cultural Heritage Council Inc, in field and office based positions working to care and protect Wurundjeri country.

Cummeragunja Housing & Development Aboriginal Corporation sought an exemption to enable it to advertise for and employ only Indigenous persons in the positions of Mental Health Worker, Aboriginal Health Worker, Trainee Aboriginal Health Worker and Administration Trainee.

The Ian Potter Museum of Art applied to the Tribunal for an exemption to enable it to advertise for and employ only an Indigenous person in the role of Vizard Foundation Assistance Curator.

Decisions

In each case, the Tribunal held that the proposed conduct constituted a special measure and was, therefore, not discrimination for the purposes of the EOA. As such, the Tribunal found there was no need for an exemption and the applications were struck out under paragraph 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

Section 90 of the EOA sets out the factors that must be considered by the Tribunal in deciding whether to grant an exemption. Those factors include:

• whether the proposed exemption is unnecessary, either because the proposed conduct does not constitute prohibited discrimination or an exception or exemption already applies; and
• whether the proposed exemption is a reasonable limitation on the right to equality set out in the Charter.

Whether the proposed exemption is unnecessary

In each case, the Tribunal found that the exemption was unnecessary as the proposed conduct constituted a special measure under s 12 of the EOA. Section 12 relevantly provides:

• A person may take a special measure for the purpose of promoting or realising substantive equality for members of a group with a particular attribute.
• A person does not discriminate against another person by taking a special measure.
• A special measure must –

a)     be undertaken in good faith for achieving the purpose set out in subsection (1); and

b)     be reasonably likely to achieve the purpose set out in subsection (1); and

c)     be a proportionate means of achieving the purpose set out in subsection (1); and

d)     be justified because the members of the group have a particular need for advancement or assistance.

In Parks Victoria, the Tribunal found that the proposed conduct was intended to be engaged in for the purpose of providing employment opportunities to Indigenous people, to increase the number of Indigenous people employed by the applicant, to provide opportunities of connection and care for the Wurundjeri country by its traditional owners and also for the maintenance of the culture associated with the country. The Tribunal found that those purposes had the broader purpose of realising substantive equality for Indigenous persons and was satisfied that it would be undertaken in good faith. The Tribunal found that the proposed conduct was reasonably likely to achieve the purpose as the persons offered employment would benefit, as well as Indigenous people more broadly. The Tribunal was satisfied that the measure was proportionate in light of the fact that, at the time the application was made, only 7.6% of Parks Victoria’s workforce were Indigenous.

In Cummeragunja, the Tribunal considered that the proposed conduct was intended to be engaged in for the purpose of providing employment opportunities for Indigenous applicants, as well as for providing health services to local Indigenous people in a manner that is most relevant and appropriate. The Tribunal found that those purposes also had the broader purpose of promoting substantive equality for Indigenous people. The Tribunal was satisfied that the proposed conduct would be undertaken in good faith. The proposed conduct was regarded by the Tribunal as being reasonably likely to achieve the purpose as the individuals employed, as well as the broader Indigenous community, would benefit. In addition, it was found that, by having Indigenous staff provide the health and administrative services required, it was likely that the health services would be provided in a manner that was most relevant and appropriate. At the time of making the application, there were almost equal numbers of Indigenous to non-Indigenous staff employed at Cummeragunja, while 95% of people using the services were Indigenous. In light of those statistics, the Tribunal was satisfied that the measures were proportionate.

In The Ian Potter Museum of Art, the Tribunal held that the proposed conduct was intended to be engaged in for the purpose of providing an employment opportunity for an Indigenous person and to address the Museum’s intention to increase the number of Indigenous persons it employs to better reflect the proportion of Indigenous persons in the Australian population. The Tribunal found that those purposes had the broader purpose of promoting substantive equality for Indigenous people and was satisfied that the proposed conduct would be undertaken in good faith. The Tribunal also found that the proposed conduct was reasonably likely to achieve the purpose as the persons offered employment, and Indigenous people more broadly, would benefit. The Tribunal found that the measure was proportionate given that the proportion of Indigenous staff was dramatically less than the number required to represent the proportion of Indigenous people in the wider population.

In making each of the findings, the Tribunal took judicial notice of information from the Australian Bureau of Statistics in support of its finding that Indigenous people have a particular need for advancement and assistance.

Whether the proposed exemption is a reasonable limitation on the right to equality

The Tribunal proceeded to consider in each of the matters whether the proposed exemptions were reasonable limitations on the right to equality at s 8 of the Charter. In each case, the Tribunal was satisfied that the proposed conduct met the description at s 8(4) of the Charter as they were “[m]easures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination”. Section 8(4) of the Charter provides that such conduct does not constitute discrimination. The Tribunal was therefore satisfied that the proposed conduct was a special measure under the Charter and, therefore, would not limit the right to equality.

Implications

Special measures

The new EOA sought to clarify that special measures are not unlawful discrimination. With these decisions, the Tribunal has confirmed that where proposed conduct is found to constitute a special measure, an exemption is not required as there is no discrimination.

The Tribunal identified how to determine whether the proposed conduct constitutes a special measure stating that the definition set out at s 12(1) of the EOA comprises a test. In relation to the additional factors set out at s 12(3), the Tribunal held that they have a dual role of being further requirements that must be met, as well as going to whether the definition at s 12(1) is satisfied.  The Tribunal considered that this latter role was appropriate given that the factors at s 12(3) are consistent with previous case law considering whether special measures provisions in legislation other than the EOA are established.

In considering whether the special measure is justified because the members of the group have a particular need for advancement or assistance as required by s12(3)(d), the Tribunal held that it is not necessary for the whole group to be disadvantaged, so long as disadvantage applies to an overwhelming majority.

Charter

Section 90(b) of the EOA also now explicitly requires the Tribunal to consider whether the proposed exemption is a reasonable limitation on the right to equality at s 8 of the Charter. The Tribunal noted that the right to equality encompasses a number of rights, some of which import, to some extent, the meaning of discrimination under the EOA. As such, the Tribunal stated that arguably, where a special measure applies under the EOA, the rights which turn on discrimination in s 8 of the Charter will not arise.

However, in all three cases, the Tribunal nevertheless went on to consider whether the right to equality had been limited without reference to its finding that the proposed conduct constituted a special measure under the EOA. If reference to that finding about the scope of the Charter right had been followed, the Tribunal may have found that the right to equality was not limited on the basis that the conduct constituted a special measure under the EOA and was, therefore, not discriminatory. The Tribunal decided not to take into account that finding on the basis that “given the expansive and important objects of the Charter, it would be inappropriate to exclude consideration of the protected rights with an overly technical reading of the legislation”.

The Tribunal noted that s 8(4) of the Charter, contains a provision similar to the special measures provision in the Charter.  It provides that “[m]easures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination”.  The Tribunal held that the Charter provision is narrower in scope than the special measures provision under the EOA because the Charter provision requires that the disadvantage which the special measure seeks to remedy must exist “because of discrimination”.  The Tribunal held that where the proposed conduct is a special measure under the EOA, but not under the Charter, “it would be necessary to have recourse to the justification test in the Charter”.

The decision for Parks Victoria can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2238.html

The decision for Cummeragunja can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2237.html

The decision for The Ian Potter Museum of Art can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2236.html

Leana Papaelia is a Legal Officer at the Victorian Equal Opportunity & Human Rights Commission

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Occupy Toronto and limitations on the right to protest

Batty v City of Toronto [2011] ONSC 6862 (21 November 2011)

Summary

In Batty v City of Toronto, the Ontario Superior Court of Justice considered an application challenging the constitutional validity of a Trespass Notice issued to a group of protestors on the basis it violated the protestors’ rights under the Canadian Charter of Rights and Freedoms. It was ultimately held that the Notice was constitutionally valid under s 1 of the Charter, which provides that the rights and freedoms set out therein are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The protestors’ application was therefore dismissed.

Facts

Since 15 October 2011, the applicants and other protestors had camped overnight in St. James Park as part of the ‘Occupy Toronto’ movement and the broader global ‘Occupy Movement’, concerning various economical, social and environmental issues. The Protesters did not ask for permission from those who used or lived in or around the park to conduct their protest.

On 15 November 2011, the City of Toronto served the Protestors with a Notice under the Trespass to Property Act, R.S.O. 1990. The Notice prohibited Protesters from installing, erecting or maintaining a tent, shelter or other structure and using, entering or gathering in the park between 12.01am and 5.30am. If they did not comply with the Notice, then the City would remove such tents, shelters or structures.

On 15 November, an interim order was granted preventing the City from enforcing the Notice and from restraining the applicants and any other persons from installing, erecting or maintaining any structure. The Protesters then commenced proceedings challenging the validity of the Notice.

Argument

The Protesters argued that the Notice, and any action taken to enforce it, violated their constitutional rights under the Charter – in particular, their rights of freedom of conscience, expression, peaceful assembly, and association – and that the Act was contrary to the Charter.

The Respondents, the City, sought orders allowing them to enforce the Notice so as to have the Park return to the full use of all citizens. The Respondents relied upon parks by-laws and the enforcements mechanisms of the Act to support its application for enforcement of the Notice. The City filed affidavits on behalf of 11 citizens of Toronto which outlined how their enjoyment of the Park had been infringed since the arrival of the Protesters.

Decision

The Court recognised that the Protesters act of camping out and taking over the Park was activity that did engage the rights of freedom of expression and peaceful assembly under s 2 of the Charter. The Court stated that “the applicants are engaged in conduct expressing political and social messages” and that “the structures which the Protesters have erected in the Park are an important part of the manner by which they are expressing their messages”.

The key question then became whether the curtailment of the Protesters’ rights under ss 2(a) to (d) of the Charter could be ‘justified’ as a reasonable limit prescribed by law, in accordance with s 1 of the Charter. In determining whether the Notice was ‘justified’, the Court adopted the two-step test set out in R v Oakes (1986) SCC 46. Under this test, a limitation on rights must be “designed to achieve an objective of sufficient importance to warrant overriding the constitutionally protected right or freedom” and must also be “proportional to the objective”.

Applying Oakes, the Court held that the Notice was a reasonable limitation on the Protesters’ rights, being issued under parks-by-laws, having the important purpose of “enabling all to share a common resource and ensuring that the uses of the parks will have a minimal adverse impact on the quiet enjoyment of surrounding residential lands”, and being rationally connected and proportionate to that purpose. In the Court’s view, the Notice attempted to “balance, in a fair way, the different uses we wish to make of our public parks so, at the end of the day, we all get to enjoy them”.

Relevance to the Victorian Charter

Sections 14, 15 and 16 of the Victorian Charter of Human Rights mirror ss 2(a)-(d) of the Canadian Charter, while s 7 of the Victorian Charter correlates closely with the limitations provision under s 1 of the Canadian Charter.

The decision in Batty is timely and relevant given the continuation of various ‘Occupy Movements’ around the world, particularly in parts of Australia. If a Victorian protestor were to rely on ss 14, 15 and 16 of the Victorian Charter in defending or objecting to a notice removing them from a public space, then the decision is Batty is likely to provide important guidance to Victorian courts in weighing the interests of protestors against those wanting to enjoy public spaces. However, any decision would turn on the facts of each particular case and much would depend upon what impact the enforcement of protestor‘s various rights would have on others.

The decision can found online at: http://canlii.ca/en/on/onsc/doc/2011/2011onsc6862/2011onsc6862.html

Wayne Harrison is a Summer Clerk and Daniel Creasey is a Senior Associate & Pro Bono Coordinator (Melbourne) with DLA Piper

Schwabe and M.G. v Germany – 8080/08 [2011] ECHR 1986 (1 December 2011)

Summary

The European Court of Human Rights has ruled that the detention of two German citizens, who planned to be involved in protests against the 2007 G8 summit, constituted an unlawful breach of the rights to liberty and security of person and freedom of peaceful assembly under the European Convention on Human Rights.

Facts

During 6 – 8 June 2007, Germany hosted the G8 summit for Heads of State and Government in Heiligendamm, in the vicinity of Rostock. In the lead-up to the summit German police held fears about terrorist attacks and property damage by extremists planning to sabotage the summit. Serious riots broke-out during the week prior to the summit. Some 400 police officers were injured and over 1000 rioters were detained.

On the evening of 3 June 2007, the applicants were in the car park of Waldeck Prison, in Rostock, with seven other people when they were approached by police. One of the applicants allegedly resisted an identity check by the police. There was some evidence of a minor scuffle. After ascertaining the applicants’ identities, the police searched their car and found banners bearing the inscriptions “freedom for all prisoners” and “free all now”. The police arrested the applicants on the spot and seized their banners.

In the early hours of 4 June 2007, the applicants were brought before a District Court which ordered their detention until 9 June 2007 in order to prevent the applicants from committing crimes.

The applicants’ numerous appeals to German courts failed. They remained in detention for some five and a half days, by which time the G8 summit was over. Criminal proceedings against one of the applicants for obstructing the police officers in the course of the identity check were dropped and charges for incitement offences were never laid.

Decision

Liberty and security of person

The Court held that the applicants’ arrest and detention unlawfully breached their rights to liberty and security of person under article 5 of the Convention.

In reaching this conclusion, the Court rejected Germany’s claims that its actions complied with the Convention because the detention was reasonably necessary to prevent the commission of a criminal offence (article 5(1)(c)) and for the purpose of meeting Germany’s obligation to protect its citizens (article 5(1)(b)).

The Court said that article 5(1)(c), which provides a basis for detention “when it is reasonably necessary to prevent his committing an offence”, goes no further than enabling a state to prevent a “concrete and specific offence”. In order to rely on this basis, the state must be able to identify the place, time and victims of the impending offence. Further, the detention must be effected for the purpose of bringing the person before a competent legal authority to respond to criminal allegations.

The Court noted that Germany’s lower courts had failed to consistently identify the offences that the applicants were supposedly about to commit. For example, one lower court found that the applicants had intended to incite others to free prisoners by force at Waldeck Prison, while another lower court said they planned to drive to Rostock and incite the crowd (including violent demonstrators) there. Ambiguity also arose from the language printed on the banners – the applicants claimed it was not intended to incite civilians to release prisoners but was, instead, directed at the authorities. Further, the Court said the detention was not “reasonably necessary” in the circumstances, as it would have been sufficient for the police to seize the banners. For these reasons, the Court held that the detention was not justifiable under article 5(1)(c).

The Court also said that article 5(1)(b), which provides a basis for detention to secure “the fulfillment of any obligation prescribed by law”, is limited to cases where a person is detained in order to compel him or her to fulfill a “real and specific obligation” which he or she has already failed to fulfill. The detention must not be punitive and must cease as soon as the obligation has been fulfilled. Article 5(1)(b) did not justify detention, in this case, because Germany failed to identify any specific legal obligation, such as a particular criminal law, that the applicants had failed to comply with.

Freedom of peaceful assembly

The Court also found that Germany had breached the applicants’ right to freedom of peaceful assembly (article 11) when read in conjunction with their right to freedom of expression (article 10). The breach arose because the detention prevented the applicants from expressing their views together with other demonstrators protesting against the G8 summit.

The Court reiterated that article 11 only extends to a right to peaceful assembly and does not cover demonstrations where the organizers and participants have violent intentions. However, the risk of violent extremists becoming involved in protests does not take away the right. Rather, where this risk exists, the right to freedom of assembly may be limited in manner that is “prescribed by law”, pursued for a legitimate aim (including national security, public safety or the prevention of disorder or crime) and “necessary in a democratic society”. Hence, it becomes a question of appropriately balancing competing rights and freedoms.

In this case, the Court said the applicants’ detention for a number of days was a disproportionate response to the risks. Specifically, the Court noted that “a fair balance between the aims of securing public safety and prevention of crime and the applicants’ interest in freedom of assembly could not be struck by immediately taking the applicants into detention for several days”.

The Court ordered Germany to pay each applicant EUR 3,000 in damages, plus their legal costs for the breaches.

Relevance to the Victorian Charter

The Victorian Charter of Human Rights and Responsibilities also contains rights to liberty and security of person (s 21), freedom of expression (s 15) and freedom of peaceful assembly and association (s 16) which, although worded differently from the Convention, are based on the same international legal principles.

This case provides useful commentary about what is ‘lawful’ detention and what constitutes a reasonable limitation on the right to freedom of peaceful assembly under international law which may have application to cases under the Charter.

The decision is available at http://www.bailii.org/eu/cases/ECHR/2011/1986.html.

Emma Purdue is on secondment to the Human Rights Law Centre from Lander & Rogers

Osman v Minister of State for Provincial Administration & Internal Security and Ors eKLR [2011] (16 November 2011)

Summary

The High Court of Kenya has held that the forced eviction of 1,122 people was a violation of the right to adequate housing enshrined in the Kenyan Constitution and a number of other rights, and made injunctions compelling the government to return the evictees to their land and to reconstruct reasonable housing for the community.

Facts

In December 2010, local and district administration officials and police visited communities at Medina, Kenya, stating that a ring road would be constructed in the area and that houses in the affected area would be demolished. No written information was provided, no court process was undertaken and subsequent attempts by the community to communicate with the authorities were unsuccessful.

On 24 December 2010, armed police and unidentified youths arrived at the community and, without warning, began to demolish houses which they claimed were on government land. The evictions continued on 30 and 31 December 2010 and, when the community resisted, police used tear gas and violence as part of the eviction.

One hundred and forty-nine houses were demolished, affecting 1,122 people, including children and the elderly. No alternative accommodation was provided; in fact, the community was prevented even from salvaging any of their possessions. The community was left in the open without shelter, food, water or sanitation, and the education of the children was interrupted.

The community filed a petition alleging breaches of the Constitution of Kenya, seeking injunctive relief and damages. The community was represented by the local human rights organization Hakjjamii (www.hakijamii.com), while a number of organizations associated with the international human rights network ESCR-net appeared as amicus curiae.

Decision

The Kenyan Constitution of 2010 recognises civil and political rights and economic, social and cultural rights, and makes both justiciable. It also applies international human rights covenants signed by the Kenyan government as the law of Kenya.

The High Court found that the evictions breached a number of rights in the Kenyan Constitution of 2010, including the rights to: life; the inherent human dignity and security of the person; access to information; protection of property; accessible and adequate housing, reasonable standards of sanitation and health, freedom from hunger and access to clean and safe water; and the rights of older persons.

The court also held that the evictions violated the right to adequate housing under the ICESCR, the protection against arbitrary or unlawful interference with privacy, family or home under the ICCPR, and rights protected in the African Charter on Human and Peoples’ Rights.

The court noted that the appropriate remedy in cases of forced eviction is restitution, which should restore victims to the position before the violation of human rights. The court ordered that the authorities return the land to the community and construct alternative accommodation.

The court also issued an injunction permanently restraining authorities from further evictions until the law was followed.

In reaching its decision, the court emphasized the interdependence of civil and political rights and economic, social and cultural rights.

The court drew heavily on the General Comments of the UN Committee on ESC Rights relating to adequate housing and forced evictions, and on the Concluding Observations of the UN Human Rights Committee relating to forced evictions in Kenya. The court also drew on the seminal decisions of the Constitutional Court of South Africa relating to forced evictions.

Relevance to the Victorian Charter

The factual situation of this eviction, although sadly common in the global south, is not replicated in Victoria today. However, it does not follow that forced evictions, as defined in international human rights law, do not occur in Victoria.

The decision affirms that forced evictions may constitute a violation of a number of civil and political rights that are recognized in the Victorian Charter, including the protection of privacy (s 13), access to information (s 15) and right to life (s 9). Charter jurisprudence has already recognized that evictions may violate the right to privacy.

The decision emphasizes the interdependence of all human rights. It also reinforces that court enforcement of ESC rights plays a role in constraining arbitrary and unlawful administrative actions of the state, a role that is entirely consistent with the function of courts in the Australian system.

This stands in stark contrast to the deeply flawed findings of the recent review of the Victorian Charter by the Scrutiny of Acts and Regulations Committee of Parliament, which recommended ESC rights should not be added to the Victorian Charter because it would necessarily involve courts commenting on resource allocation by government in a way that is inconsistent with the functions of courts in Victoria.

The decision is available at http://kenyalaw.org/Downloads_FreeCases/Embu_Pet_2_2011.pdf.

Hugh Mannreitz is a Melbourne-based lawyer

McGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 154 (23 November 2011)

Summary

In this case, the Supreme Court of the United Kingdom held that it is not necessary for an accused in custody to receive advice from a lawyer in order to effectively waive their right of access to a lawyer under article 6 of the European Convention of Human Rights. The Court did observe, however, that where people are vulnerable or the questioning is long and complex, they may need to be given additional protections to ensure they understand the rights in question.

Facts

The Respondent, ‘B’, was questioned about alleged housebreaking with intent to steal and having in his possession a controlled drug contrary to s 5(2) of the Misuse of Drugs Act 1971. He was offered a consultation with a solicitor prior to the interview but declined the offer. He was ultimately charged with both of these offences.

In advance of the trial, B’s solicitor lodged a Devolution Minute claiming B’s right to legal assistance under article 6(3)(c) of the Convention would be breached if the Crown were to lead evidence of the police interview. It was argued that access to a solicitor should be automatic when someone has been detained in custody.

The propositions in the Minute were based on observations of the High Court of Justiciary in Jude v HM Advocate [2011] HCJAC 46, 2011 SLT 722 (‘Jude’). In that case Lord Justice Clerk said that he could not see how a person could waive his or her right to legal advice when he had not had access to legal advice on the point. In light of the importance raised by this observation, the Lord Advocate invited the sheriff to refer the issue to the Supreme Court. The amended questions for the Court, agreed between the parties, were:

• Whether it would necessarily be incompatible with articles 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody who, before being interviewed: had been informed of his or her Salduz/Article 6 rights to legal advice; and without having received advice from a lawyer, had stated that he did not wish to exercise such rights.
• Whether it would be compatible with B’s rights under articles 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given in his police interview.

Decision

By a 4-1 majority, the Supreme Court answered the first question in the negative, and remitted the second question to the sheriff.

Lord Hope, in the majority, noted that article 6(1) read with article 6(3)(c) does not expressly require that a person has legal advice before he or she can be taken to have waived the right to legal advice. But the article is to be interpreted broadly by reading into it a variety of other rights to give practical effect to the right to a fair trial.

His Lordship found there was no basis in the jurisprudence of the Strasbourg Court for holding that, as a rule, an accused must have had access to legal advice on the question whether or not he should waive his or her right to consult a solicitor before being interviewed by police. Statements to the contrary in the lower court in Jude should be disapproved. It will ordinarily be sufficient for an accused, having been informed of his or her rights, to state that he does not want to exercise them.

However the Strasbourg cases do show that, in order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal. The court must be alive to the possibility that the words of caution, and notice that the detainee has the right to legal advice, may not be fully understood by everyone. This may depend on all the circumstances, including the age, health, apparent intelligence and state of mind of the person and the likely length and complexity of the interview. Lord Hope (Lords Brown, Dyson and Hamilton agreeing) made two suggestions for improving current practice:

• In order to minimise the risk of misunderstanding, police should point out that the right to speak to a solicitor includes the right to speak to a solicitor on the telephone. If the detainee continues to waive the right the officer should ask the detainee for his or her reasons for waiving his or her right to legal assistance, and record the reasons given; and
• In order fully to apprise a person interrogated of the extent of his or her right, police should inform the detainee not only of the right to legal assistance, but also of the arrangements that may be made if he or she is unable to name a solicitor or is concerned about the cost of employing one.

The majority decided it would not be appropriate to reach a decision on the second question as the issue came before the Court as a reference, not an appeal. As it raised questions of fact it was more appropriately dealt with by the sheriff, after hearing all evidence on the issue.

Lord Kerr would answer both questions in the negative. He would require the suggestions made by Lord Hope to be implemented in every case in order to ensure the waiver is voluntary, informed and unequivocal. No attempt had been made to discover why B had refused to exercise his right to legal assistance in this case. Accordingly it was impossible to say on the available evidence that there had been an unequivocal and informed decision to waive his right.

Relevance to the Victorian Charter

Section 25(2)(d) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) recognises a right of access to a lawyer similar to that recognised by the Convention. Like article 6(3)(c) of the Convention, s 25(2)(d) explicitly provides that a person charged with a criminal offence is entitled to legal assistance chosen by him or her.

This case clarifies the uncertainty introduced by Jude. If the interpretation in McGowan is adopted and applied in Australia to s 25(2)(d), legal advice as to whether a person should exercise the right to legal advice will not be necessary in every case. However where the person is vulnerable or the questioning is long and complex, the court may find that legal advice is necessary in order to ensure the waiver was voluntary, informed and unequivocal.

Further, police should consider in each case whether additional protections are appropriate. This may include informing the person they can telephone a solicitor, asking why they have declined legal advice, noting down their reasons, and informing them that arrangements can be made if they do not know a solicitor or cannot afford one. Section 25(2)(e) of the Victorian Charter explicitly provides that if a person is eligible for legal aid and does not have legal assistance they are to be told of the right to legal aid.

The decision is available online at: http://www.bailii.org/uk/cases/UKSC/2011/54.html

Emma Newnham is a Summer Clerk with the Mallesons Stephen Jaques Human Rights Law Group

Singh v France, UN Doc CCPR/C/D/102/18767/2009 (22 July 2011)

Summary

The UN Human Rights Committee recently decided that a French regulation requiring persons to appear bare headed in identity photographs used for residency permits constitutes an impermissible limitation on the applicant’s freedom of religion in violation of article 18 of the International Covenant on Civil and Political Rights.

Facts

The author was an Indian refugee who had held a French permanent residence permit since 1992. In 2002 the author submitted an application to renew his permit and provided two photographs of him wearing a turban, as he had done when filing his previous application.

The author’s application was rejected on the basis that the photographs failed to meet the requirements of Decree No. 46-1574 (as amended in 1994), which required all identity photos accompanying residence card applications to show applicants full-faced and bareheaded.

The author contended that as a Sikh, the wearing of a turban was an integral part of his faith and identity and that removing his turban could be viewed as a rejection of his faith and would be deeply humiliating. Moreover, because the photo would be shown as proof of identity, that humiliation would be repeated at every instance where identification is requested. He argued that the relevant provisions of the Decree amounted to a violation of article 18 of the Covenant.

The State party argued that the requirement to appear bareheaded in identity photos was a one-time requirement that constituted a reasonable measure to minimise the risk of fraud or falsification of residence permits and was justified in order to protect public order and safety.

Decision

Under art 18 (2) of the Covenant every person is to be free from coercion which would impair their freedom to have or adopt a religion of their choice. General Comment No. 22 concerning article 18 of the Covenant considers that the freedom to manifest a religion encompasses the wearing of distinctive clothing or head coverings.

Article 18(3) guarantees the freedom to manifest one’s religion or beliefs subject only to reasonable limitations which are prescribed by law, and are necessary for the protection of public safety, order, health, or morals, or to protect the fundamental rights and freedoms of others.

The Committee acknowledged that wearing a turban constitutes a fundamental part of being a Sikh and considered that the Decree interfered with the exercise of freedom of religion. Accordingly, the Committee undertook a balancing exercise to determine whether the limitation of the applicant’s right to manifest his religion or beliefs was authorised under art 18(3).

The Committee found that the State party did not adequately explain why the wearing of the turban would make it more difficult to identify the author, since he wore his turban at all times, or how identity photographs in which people appear bareheaded help to avert the risk of fraud or falsification of residency permits.

The Committee also pointed out that the removal of the turban for the identity photo could not be described as a one-time requirement as he would always appear without his religious head-covering in the photo and could therefore be compelled to remove his turban during identity checks.

The Committee concluded that the requirement that an individual appear bareheaded in an identity photo was a limitation on the author’s freedom of religion in violation of article 18 of the Covenant.

Relevance to the Victorian Charter

The decision provides a good example of analysis concerning the scope of permissible limitations on the right to freedom of religion. This analysis occurs under article 18(3) of the Covenant and s 7(2) of the Charter, but in both cases requires that that any limitation must be justified with clear, cogent and persuasive evidence.

The decision is available at http://www.bayefsky.com/pdf/france_t5_ccpr_1876_2009.pdf.

Richard Collins is undertaking an internship with the Human Rights Law Centre

Jude v Her Majesty’s Advocate (Scotland) [2011] UKSC 55 (23 November 2011)

Summary

In this case, the Supreme Court of the United Kingdom held that admitting evidence of unsolicited statements made to the police by an accused who had waived his right to access legal advice did not deny him a fair trial contrary to article 6(1) of the European Convention on Human Rights.

Facts

The judgment concerned appeals by three accused against their convictions. However, the only appeal to raise issues of an accused’s right to a fair trial under the Convention was that of Birnie. Birnie was arrested in relation to an alleged sexual assault and detained for questioning by the police. After being interviewed for about two hours, Birnie told the police that he wanted to make a statement. He was emotionally distressed at the time. The police offered Birnie the right to access a lawyer before making his statement, which he declined. Birnie then admitted to sexually assaulting the complainant. The Crown relied on Birnie’s statement at his subsequent trial. He was convicted and sentenced to imprisonment.

Decision

The question in Birnie’s appeal to the Court was whether admitting evidence of his unsolicited statement denied him a fair trial contrary to article 6(1) of the Convention. By a majority of 4:1, the Supreme Court held that Birnie had not been denied a fair trial.

The leading judgment was delivered by Lord Hope, with whom Lords Brown, Dyson and Hamilton agreed. Lord Kerr dissented in relation to Birnie’s appeal. Lord Hope held that Birnie’s statement was admissible on two grounds.

Birnie had waived his right to legal advice

Lord Hope held that Birnie had effectively waived his right to access a lawyer, even though he had not been given legal advice on whether he should have waived the right. Birnie’s waiver was held effective for several reasons.

First, Birnie had been told prior to making his statement that he had the right to access a lawyer. This overruled a finding made in the High Court that Birnie did not know that he had a right to access legal advice.

Second, Lord Hope held that there was no absolute rule according to the jurisprudence of the European Court of Human Rights that an accused must be given legal advice on the question of whether to access further legal advice, in order for the accused’s waiver to be effective.

Third, His Lordship held that it was not necessary for Birnie’s reasons for declining legal advice to be understood in order for his waiver to be effective. The fact that he had not received legal advice was merely a circumstance which could be taken into account to determine whether he understood the right being waived  In this case, it appeared that Birnie understood what he was doing.

Birnie’s statement was voluntary

Lord Hope also held that Birnie’s statement was voluntary and not elicited by police questioning.

His Lordship considered authorities on the common law test of voluntariness and international decisions which referred to the jurisprudence of the Strasbourg Court. The authorities indicated (perhaps unhelpfully) that rigid rules should not be adopted in order to determine whether an accused’s statement was voluntarily made. Rather, they indicated that each case should be examined on its own facts.

In this case, there were indications that Birnie may have been particularly vulnerable at the time he made his statement. These were his young age (18 years) and the fact that he was emotionally distressed after the police interview. However, those circumstances did not conclusively indicate that Birnie’s statement was not voluntarily made.

Ultimately, Lord Hope chose not to decide the point for jurisdictional reasons concerning Scottish criminal law and procedure. His Lordship ordered that the matter be remitted to the High Court for final determination.

Lord Kerr’s dissent

Lord Kerr dissented in relation to Birnie’s appeal. His Lordship held that it was necessary for some inquiry to be made as to why an accused declined to access legal advice, unless the reasons were obvious. In this case, there were several indications that Birnie was not fully informed and that his waiver was therefore ineffective. These were his young age, his emotional state after the police interview and the fact that when he was asked if he wanted a lawyer present, the procedure was carried out in a “routine” way and did not guarantee that his decision was fully informed.

His Lordship also held that although it was not an absolute rule that an accused be provided with legal advice in order to make a subsequent waiver effective, providing legal advice will typically be the most effective way of ensuring that it is effective.

Relevance to the Victorian Charter

The Victorian Charter guarantees the right to a fair hearing (s 24).  It also guarantees persons accused of a criminal offence the right to communicate with a lawyer or adviser of their choice under s 25(2)(d). These rights are analogous to those guaranteed by articles 6(1) and 6(3)(c) of the Convention, both of which were relevant in this case. It is therefore possible that the rights under ss 24 and 25(2)(d) of the Charter could be interpreted as not preventing evidence of unsolicited statements being admitted where an accused has waived the right to legal advice.

On the other hand, the Supreme Court in Jude (in relation to Birnie’s appeal) relied predominantly on the jurisprudence of the Strasbourg Court for its authority. The Court did not decide whether an accused’s waiver of the right to legal advice would be effective in the same circumstances at common law. Therefore, the case may be confined to the context of decisions which relate to the Convention and have little to say about how the Victorian Charter should be interpreted. It does, however, provide an example of a factual situation where the accused’s acts overruled their rights guaranteed under human rights legislation.

This decision is available online at: http://www.bailii.org/uk/cases/UKSC/2011/55.html

William Thomas is a Summer Clerk with the Mallesons Stephen Jaques Human Rights Law Group

R, Mousa v Secretary of State for Defence & Anor [2011] EWCA Civ 1334 (22 November 2011)

Summary

The UK Court of Appeal recently considered the investigation obligation under articles 2 and 3 of the European Convention on Human Rights in the context of an inquiry established by the UK Government to investigate allegations of mistreatment of Iraqis by British troops. The Court found the inquiry did not possess requisite independence because the investigating body was staffed with members of a branch of the military which had been involved in the detention and internment of suspected persons in Iraq during the period under investigation.

Facts

The Secretary of State for Defence established a body to investigate numerous allegations of ill-treatment of persons detained in Iraq by members of the British Armed Forces over the period 2003 to 2009 with a view to identifying and punishing anyone responsible for wrongdoing.  The Iraq Historic Allegations Team (IHAT) was to be lead by a civilian, who would report to the Provost Marshal (Army) (PMA). The PMA also served as head of the Royal Military Police. Upon being satisfied that a case had been adequately investigated, the Head of IHAT was to make a written report of the investigation to the PMA along with a recommendation on what action should follow. However, the final decision would rest with the PMA. The PMA was also head of the Provost Branch, a military branch which had operated in Iraq.

The legal proceeding concerned an application to review the decision of the Secretary not to conduct a full public inquiry into the allegations and the systemic issues that arise. Whilst not eliminating the possibility of a public inquiry at a later stage, the Secretary’s position was that it was inappropriate to initiate such an inquiry while the IHAT was investigating. He determined that it was appropriate to adopt a ‘wait and see approach’, pending the outcome of IHAT’s investigations.

The claimant was an individual representing a group of more than 140 Iraqis who had allegedly suffered mistreatment at the hands of British Armed Service personal. The claimants argued that the procedure adopted by the Secretary fell short of the investigative requirement under Articles 2 (right to life) and 3 (right to be free from torture, and inhuman or degrading punishment) of the European Convention. It was argued that the only way the Secretary could satisfy his obligations under the Convention was to order a single and comprehensive inquiry using his powers under the Inquiries Act 2005 (UK).

Decision

In the first instance, the Divisional Court found in favour of the Secretary, finding that the IHAT investigation was sufficiently independent and the Secretary’s ‘wait and see’ approach to conducting a public inquiry was permissible. The claimant appealed that decision. The issues at appeal were, first, whether the involvement of the Provost Branch meant that the IHAT investigation was not “hierarchically, institutionally and practically independent” and therefore in breach of article 3. Second, whether it was permissible for the Secretary to adopt the ‘wait and see’ approach.

The Court of Appeal determined that, as a matter of perception, the practical independence of IHAT had been substantially compromised. The effect of the involvement of Provost Branch on the ground in Iraq alongside the composition and structure of IHAT meant that it became an unavoidable conclusion that IHAT lacked the requisite independence.

Problematically, Provost Branch members of IHAT had been involved in incidents surrounding the detention and internment of suspected insurgents in Iraq. If it transpired that the allegations were true, then legitimate questions could be raised concerning the ability of IHAT to discharge its investigative responsibility with impartiality. Moreover, questions over the PMA’s independence would also be raised considering his position as head of the Provost Branch members.

In coming to their conclusion, the Court emphasised that there was no evidence that any individual member of the Provost Branch was involved in reprehensible conduct towards detainees in Iraq and that for the claimant to succeed in establishing a lack of independence it was not necessary to provide that some element or person in IHAT actually lacks impartiality. Public perception of the possibility of unconscious bias was, of course, sufficient to compromise the independence of the investigation.

The Court determined that in the face of a compromised investigation, the ‘wait and see’ approach adopted by the Secretary of State was not appropriate. The Court of Appeal decided that it was for the Secretary of State to reconsider how his obligation to investigate under article 3 would be best satisfied.

It should be noted that while this case was primarily concerned with article 3 of the Convention rather than article 2, it was accepted by the Court that the same broad principle applies in both instances.

Relevance to the Victorian Charter

Section 10 of the Charter contains the right to freedom from cruel, inhumane, or degrading treatment or punishment, which is the equivalent to article 3 of the European Convention. Section 9 of the Charter guarantees the right not to be arbitrarily deprived of their life and is the equivalent of article 2 of the Convention.

This case provides an instructive example of the application of the legal principles on the procedural obligations attaching to these rights, particularly in the context of investigation of systemic issues and large-scale inquiries. The decision provides further weight to criticisms made by the HRLC and others around the sufficiency of current investigation models in Victoria, including in relation to police-related deaths and deaths in psychiatric hospitals: for example, see the HRLC Report “Upholding our Rights: Towards Best Practice in the Police Use of Force”.

The decision can be found online at: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1334.html

Richard Collins is undertaking an internship with the Human Rights Law Centre

Cheshire West and Chester Council v P [2011] EWHC 1330 (Fam) (9 November 2011)

Summary

The Court of Appeal has found that the care plan of a man lacking capacity under the Mental Capacity Act 2005 (UK) did not involve a deprivation of liberty within the meaning of article 5 of the ECHR. In so doing, it has usefully clarified the principles which should be taken into account when considering whether a person has been deprived of his or her liberty within the meaning of article 5. Most significantly, the judgment has clarified that in analysing whether article 5 is engaged:

• the objective reason for, and objective purpose/aim of, the restrictions imposed are relevant considerations (whereas subjective motives or intentions are of limited relevance); and
• that person’s situation must be compared with the appropriate comparator (namely, “another person of similar age with the same capabilities, affected by the same condition or suffering from the same inherent mental and physical disabilities and limitations”).

Facts

P, a 39 year old man with cerebral palsy and Down’s Syndrome, lacked the capacity to make decisions about his own care and residence as a result of his physical and learning disabilities. From November 2009, he resided at a facility called ‘Z House’. The question arose whether P was deprived of his liberty during his time at the facility, by virtue of certain restrictions imposed upon P by the staff:

• to manage his general living conditions; and
• to address certain challenging behaviour identified in his care plan (including placing soiled continence pads into his mouth, picking at his skin causing wounds, being aggressive towards others and banging/ slapping his head).

These restrictions included P being under the control of staff at all times and occasional physical restraint and physical intervention (for instance, ‘finger sweeping’ to remove soiled continence pads from his mouth).

At first instance in the Court of Protection, Barker J found that while care had been taken to ensure P’s life was ‘as normal as possible’ and it was in his best interests to continue to reside at ‘Z House’, his care plan involved a deprivation of liberty because he was under the staff’s control at all times and the interventions targeting certain behaviour ‘as a matter of concrete fact and legal principle, involve[d] a deprivation of his liberty’. The question did not go to the legality of the deprivation as the order made lawful anything that would breach article 5, but rather whether P was entitled to the procedural protections of article 5(4).

The Cheshire West and Chester Council, which was responsible for P’s care, appealed the decision to the Court of Appeal, arguing that P’s care plan at ‘Z House’ did not involve a deprivation of liberty.

Decision

The Court of Appeal (Munby LJ, Lloyd LJ and Pill LJ agreeing) unanimously decided in favour of the Council, holding that P’s care plan did not constitute a deprivation of liberty.

After considering the ambit of article 5 and reviewing the relevant case law on deprivation of liberty, Munby LJ drew attention to ‘some aspects of the jurisprudence which are likely to be of significance in the kind of cases that come before the Court of Protection ([102]). In essence, these were:

• The starting point is the ‘concrete situation’, taking account of a whole range of criteria such as the ‘type, duration, effects and manner of implementation’ of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not nature or substance.
• Deprivation of liberty must be distinguished from restraint. Restraint by itself is not deprivation of liberty.
• Account must be taken of the individual’s whole situation.
• The context is crucial.
• Mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty.
• In determining whether or not there is a deprivation of liberty, it is legitimate to have regard both to the objective reason why someone is placed and treated as they are and also the objective purpose/ aim of the placement.
• Subjective motives or intentions have only limited relevance. The test is essentially an objective one. An improper motive or intention may have the effect of making something a deprivation when it otherwise would not have been one. However, good intentions are neutral at best.
• In determining whether or not there is a deprivation of liberty, it is always relevant to evaluate and assess the ‘relative normality’ (or otherwise) of the concrete situation.
• But the assessment must also take account of the particular capabilities of the person concerned.
• In most contexts, the relevant comparator is the ordinary adult going about the kind of life which an average able-bodied person would normally be expected to lead.
• However, this is not the case in the kind of cases typically before the Court of Protection, which typically dealt with adults whose lives were dictated by their own cognitive and other limitations.
• In these cases, the appropriate contrast is not with the life led by X, nor with the life of an able-bodied person, but with the kind of lives that people like X would normally expect to lead. The comparator is a person of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations as X.

Munby LJ also emphasised that the mere fact that a domestic setting could involve a deprivation of liberty, did not mean that such a finding was likely in most cases. On the contrary, when considering the care of vulnerable children or adults by friends, family or carers in a small specialist facility, there would typically be no deprivation of liberty.  He went on to indicate that, in the absence of an improper purpose or improper motive, he expected these kinds of cases could be dealt with simply and quickly.

Applying this analysis to P’s situation, Munby LJ (with whom Lloyd LJ and Pill LJ agreed) departed from Baker J’s reasoning and held that there was no deprivation of liberty amounting to an infringement of article 5. Most significantly, Munby LJ considered that there was nothing to show that the life P was living at ‘Z House’ was significantly different from the kind of life that anyone with similar disabilities would expect to lead and he was living a life (both inside and outside ‘Z House’) as normal as possible for someone in his situation with his capabilities. The kinds of occasional and brief restraint placed upon P were likely to have been adopted by anyone caring for P in any setting and were ‘far removed indeed from anything that begins to approach a deprivation of liberty’ ([114]).

Relevance to the Victorian Charter

The right to liberty and security of the person is protected by s 21 of the Charter. Section 21 relevantly provides that every person has the right to liberty and security, a person must not be subjected to arbitrary arrest or detention and a person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law. Section 21(7) also provides that a person deprived of liberty is entitled to apply for a declaration or order regarding the lawfulness of the arrest or detention. The principles articulated in this case about what constitutes a deprivation of liberty under article 5 of the ECHR, and in particular, the appropriate comparison by reference to which such a determination should be made, could thus provide useful guidance as to the interpretation of s 21 of the Charter.

The decision is available online at: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1257.html

Mary Quinn is a Seasonal Clerk at Allens Arthur Robinson

R v Larson, 2011 BCCA 454 (10 November 2011)

Summary

In this case, the Court of Appeal for British Columbia overturned Mr Larson’s conviction for unlawful production of cannabis under s 7(1) of the Controlled Drugs and Substances Act, SC 1996, c 19. The decision was based on the finding that the warrantless search of Mr Larson’s residence, which uncovered his marijuana growing operation, was unlawful under s 8 of the Canadian Charter of Rights and Freedoms, which confers the right “to be secure against unreasonable search or seizure”. Evidence obtained in this and subsequent searches was excluded by the court under s 24(2) of the Canadian Charter, which provides for exclusion of evidence obtained in a manner that infringes any Charter rights if admission of the evidence would bring the administration of justice into disrepute.

Facts

Mr Larson was found by police officers swimming in Shuswap Lake, allegedly trying to escape from a group of persecutors. After he was convinced to come ashore, he remained agitated and reported that two men had invaded his home and that passing cars were shooting at him. Recognising his clearly paranoid delusional state, the officers apprehended him and transported him to hospital.

While Mr Larson was in hospital, two police constables went to his house to investigate the reported invasion. Although the police suspected that Mr Larson grew marijuana, the officers testified that on this occasion their sole purpose in going to his house was to investigate the alleged assault. A preliminary investigation of the premises and surroundings returned no indication that a home invasion had occurred.

Despite the lack of evidence to confirm Mr Larson’s report, the police entered the house. They found no sign of forced entry, assault or other disturbance. However, in the course of their search they uncovered a marijuana growing operation in the basement. Subsequently, they obtained a search warrant and re-entered the residence to investigate the marijuana production.

At trial, the judge found the warrantless entry lawful under the common law police power to protect public and individual safety. This was based on his finding that the police had a subjective belief that a home invasion had occurred, and that this belief was reasonable. Consequently, he held that the subsequent warrant (issued based on evidence uncovered in the warrantless search) was valid, and that the evidence obtained should not be excluded.

On appeal, Mr Larson argued that both searches of his residence were illegal and therefore the evidence obtained was inadmissible.

Decision

Legality of the Warrantless Search under s 8 of the Canadian Charter

The majority, overturning the trial judge’s findings, concluded that the warrantless search was not reasonably justified on the basis that it was conducted to protect life and safety. It therefore violated Mr Larson’s rights under s 8 of the Canadian Charter.

Under Canadian law, a warrantless search conducted without the occupant’s consent is prima facie unreasonable and therefore a breach of s 8. However, under the principles set out in R v Godoy [1999] 1 SCR 311, the police have a common law power to enter a dwelling without a warrant if there is reason to believe that such entry is necessary to protect the lives or safety of the occupants or the public. The scope of this power is limited by the R v Waterfield [1964] 1 QB 164 test, which requires any use of such power to be justified (ie necessary and reasonable in the circumstances).

The justifications for police entry into Mr Larson’s residence proposed by the trial judge included investigating the report of the home invasion and determining whether a threat to Mr Larson’s or public safety existed. While the majority acknowledged that despite Mr Larson’s obviously delusional state, it was possible that an invasion had occurred and a police investigation was warranted, they rejected the adequacy of these justifications in supporting the use of the common law power. The first justification related only to investigating a completed crime, so could support the issue of a search warrant but could not justify warrantless entry. The second justification, while in theory capable of justifying use of the common law power, lacked the urgency needed to support warrantless entry in this instance.

Accordingly, the warrantless search was found to be unlawful, and any evidence obtained in its course incapable of supporting the issue of a warrant for the subsequent search.

Exclusion of Evidence under s 24(2) of the Canadian Charter

The majority held that this was a case in which evidence obtained in the two unlawful searches should be excluded. This conclusion was based on the three considerations for exclusion of evidence under s 24(2) laid down in R v Grant [2009] 2 SCR 353: the seriousness of the state’s Charter-infringing conduct, the impact on the Charter-protected rights of the accused, and the society’s interest in the case being adjudicated on the merits. In balancing these considerations, the majority found that while there was substantial public interest in prosecuting the case against Mr Larson, this was outweighed by the seriousness of the police breach and the impact it had on Mr Larson’s privacy rights.

Relevance to the Victorian Charter

While the Victorian Charter does not expressly provide for a right to be secure against unreasonable search and seizure, the discussion of the requirement that police interference with privacy within the home must be reasonably justified may be relevant to interpreting s 13(a) of the Victorian Charter, which protects the right of persons not to have their privacy, family, home or correspondence arbitrarily interfered with. With respect to exclusion of evidence, improper search and seizure by police conducted in breach of s 38(1) of the Victorian Charter may lead to exclusion of evidence so obtained under s 138 of the Evidence Act 2008 (Vic), which provides for ‘exclusion of improperly or illegally obtained evidence’.

The decision can be found online at: http://canlii.ca/en/bc/bcca/doc/2011/2011bcca454/2011bcca454.html.

Julia Freidgeim is a Seasonal Clerk at Allens Arthur Robinson

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Update on Occupy Melbourne legal challenge to uphold the right to peaceful protest

As reported in the last edition of the Bulletin, the HRLC is part of a legal team taking action on behalf of the Occupy Melbourne protesters. A proceeding has been commenced in the Federal Court challenging the enforcement action taken by the Council and Victoria Police against the protesters on a number of bases, including that such action is in breach of the implied freedoms of political communication and association contained in the Australian Constitution and the right to peaceful assembly and freedom of expression under the Victorian Charter.

Since our last update, the enforcement action by the City of Melbourne and Victoria Police has continued unabated. Over 150 compliance notices have been issued to protesters since 21 October. Since the start of December, City of Melbourne council officers and members of the Victoria Police maintain a continuous presence at the protest site in Flagstaff Gardens during the day and night, confiscating property and goods from the protesters and patrolling the protest site, including shining torches in the faces of the protesters while they attempt to sleep.

The actions of the authorities attracted significant public interest when members of Occupy Melbourne wore tents as clothing in protest against the authorities’ enforcement of the parks and gardens regulations. One young female protester was left semi-naked and distraught in the gardens after being surrounded by large numbers of police and council workers and council officers forcibly removed the tent from her body. The police officers also threatened to charge the protesters with further criminal offences relating to indecency once the tents were removed.

As the Occupy Melbourne protesters continue their daily battle to maintain their protest and presence in the City of Melbourne, the legal battle has continued in the courts. The matter was last before the Court on 16 December for directions and a trial date has now been set in March 2012.

On 9 December, the former Attorney General, Robert McClelland, announced the release of the final version of the Baseline Study and draft National Human Rights Action Plan (NHRAP), a key initiative of the Government’s Human Rights Framework.

The Baseline Study was the first step in the development of the NHRAP. The purpose of the study is to provide a comprehensive assessment of human rights protection in Australia to identify priority areas for the Action Plan to address and to provide a basis for measuring progress over time. It is pleasing to see that the Baseline Study has expanded significantly to incorporate input received from NGOs and the wider community through the Government’s consultation process. However, unfortunately a number of weaknesses identified in the draft Study still remain. The Baseline Study can be downloaded from the Attorney-General’s website here.

The NHRAP (available here) should contain specific goals and practical actions designed to address the issues identified in the Baseline Study. The exposure draft of the NHRAP reflects work currently underway within Government but also includes a number of new actions, some of which reflect commitments made by the Australian Government throughout the Universal Periodic Review process. Certainly, there are many more commitments that could, and should, be added to the final version of the NHRAP. It is also important for the NHRAP to include specific timeframes and targets and contain adequate monitoring and evaluation mechanisms. NGOs and the wider community are invited to provide any comments on the draft NHRAP by 29 February 2012.

We hope the resources on our dedicated website www.humanrightsactionplan.org.au will be of use in preparing submissions on the draft NHRAP. If you would like to submit a blog on any of the issues raised (or, more importantly, not raised) in the draft NHRAP or post a submission on the website please email anna.brown@hrlc.org.au.

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The Centre has featured in the following media coverage since the last Bulletin:

• Dean Felton, ‘Stripped protester takes action’, 7 News, 8 December 2011

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Justice for all? The International Criminal Court – Ten Years in Review

14-15 February, Sydney

The Australian Human Rights Centre and the Faculties of Arts and Law at the University of New South Wales are convening a conference to mark the 10^th anniversary of the operation of the International Criminal Court. It will examine the contribution of the ICC to the achievement of gender justice, and analyse the uneven participation of Asia Pacific states within the ICC framework.

Speakers include ICC President, Judge Sang-Hyun Song, ICC Registrar Silvana Arbia, ICC Deputy Prosecutor (now Prosecutor-elect) Fatou Bensouda, Christian Wenaweser, immediate past President of the Assembly of States Parties, and a number of leading academic, government and civil society experts on the Court.

Further details including current program and registration details at www.justiceforall.unsw.edu.au

To coincide with the above mentioned conference, American playwright and women’s rights activist, Eve Ensler, will deliver the Australian Human Rights Centre Annual Public Lecture at the Sydney Theatre Company on 12 February 2012.

Further details at www.justiceforall.unsw.edu.au

Implementing Human Rights in Closed Environments
20-21 February 2012, Monash University Law Chambers, Melbourne

Where liberty is restricted in closed environments, such as prisons, police cells, immigration detention, and closed psychiatric and disability settings, the potential for human rights abuses is high. The management of such environments requires a delicate balance between the rights of individuals, and the safety and security of others in the closed environment and the broader community.

This conference will bring together eminent international and national speakers to examine how human rights are implemented and monitored in closed environments. It will provide an analysis of the comparative experiences of practical implementation of human rights in closed environments, as well as canvas current approaches to the national implementation of the Optional Protocol to the Convention Against Torture, and the role of regulatory frameworks more broadly in facilitating human rights implementation.

Further information is available here.

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Understand human rights, influence social policy: Master of Social Science (Policy and Human Services) at RMIT

In response to industry demand for human rights education, RMIT’s Master of Social Science (Policy and Human Services) now offers a suite of human rights electives for professional practice in human services. The program is one of the few social policy coursework Masters programs offering a human rights specialisation.

Through this degree you will:

• develop your policy and management skills,
• acquire critical expertise in human rights
• engage with NGOs, advocates and policy makers using human rights to deliver social change

Make a change. Apply now. For more information and to apply please contact the Program Coordinator, Kate Driscoll on 9925 8287 or email kate.driscoll@rmit.edu.au

The second Papua New Guinea Human Rights Film Festival was held in December and various photos, reviews and discussions surrounding the event have been posted to their website.

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YWCA Australia / Equality Rights Alliance

YWCA Australia is seeking a dynamic, experienced policy advocate and manager for the ‘Equality Rights Alliance’, Australia’s largest network of gender equality advocates. Based in Canberra, the part time position will be responsible for a small team working with ERA members to deliver policy advice to government that will advance women’s equality in Australia. ERA’s current advocacy focus is on housing that meets the needs of women, equality laws, and supporting our members to strengthen their federal budget advocacy work.

Melbourne Law School is seeking to appoint a Director of Public Interest Law. This is a new position (0.75 EFT, fixed two years). It will be the responsibility of the Director to establish and oversee a public interest law program at MLS. The role will have a particular focus on teaching, including a public interest lawyering subject with clinical placements attached and a subject in which law students will teach some legal subjects in state secondary schools. Other aspects of the program will include a leadership forum for students, coordinating communication about public interest events at MLS, and working with the Careers Office with respect to public interest internships. See: http://www.hr.unimelb.edu.au/careers

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The Arab Spring at the Human Rights Council: Success and selectivity

2011 was the year of unexpected and unprecedented change for the Middle East and North Africa (MENA). Events in the MENA region also tested the relevance and efficiency of the international human rights mechanisms, such as the UN Human Rights Council (HRC). The HRC has often been criticized for its inability and inflexibility when it comes to responding to country-specific situations. So, did the Arab awakening translate into the awakening of the HRC? In 2011, as the hundreds and thousands who took to the streets to demand their right to dignity and democracy across the MENA region faced brutal repression by the authorities, the HRC proved able to provide a potent response – but selectively so.

In February 2011, the HRC held its first ever Special Session on a country from the MENA region (except for to address violations by Israel and Sudan) to discuss the situation in Libya. At this session the HRC adopted by consensus a strong resolution which fed into the UN processes in New York, leading to the suspension of Libya from the HRC – another first time event.

The HRC also convened three Special Sessions on Syria, and established a Fact Finding Mission to investigate and report on the situation in the country, followed by a Commission of Inquiry. This is indicative of the severity of the situation on the ground, but equally of the political will of states to address Syria in particular. While the resolutions adopted at these sessions were substantially weakened due to objections by governments opposed to international accountability, nonetheless, these sessions constituted a relative success of the HRC.

During this year, the HRC also strengthened its work on thematic issues of particular relevance to recent events in the MENA region. At its September session, the HRC established a Special Procedures mandate on Transitional Justice: the Special Rapporteur on the promotion of truth, justice, reparation, and guarantees on non-recurrence. This mandate will be important for monitoring the advancement of the goals of the revolutions in the Arab world. In March, the HRC also elected Maina Kiai as the first Special Rapporteur on the rights to freedom of peaceful association and assembly – rights that have been deeply undermined in the Arab region and which lie at the core of the pro-democracy movements. The new mandates are both very significant and very timely given the events in the Arab region and beyond.

In the shadow of these successes, calls by national, regional, and international NGOs from every part of the world for the HRC to address the crackdown on protesters in Tunisia, Egypt, Bahrain, and Yemen, fell on deaf ears. The lack of political will by actors such as the US, Russia, and the European Union, the intransigent belief in the “repression = stability” equation, as well as the dynamics of block politics that plague the HRC, were largely responsible for this failure. Most disappointing was perhaps the position of democracies such as South Africa, India, and Brazil, which failed to fully support efforts for international accountability for crimes committed against peaceful protesters. In the absence of decisive action on Egypt, Bahrain, and Yemen, a panel on human rights in the context of peaceful protests was held at the HRC in September. While the panel was itself a success, a general thematic debate with no concrete outcome was hardly an adequate response to the widespread extrajudicial killings, arbitrary detentions, and rampant torture taking place in these countries.

There are reasons to believe that the positive action by the HRC with regards to Libya and Syria may not constitute a positive precedent for the Council’s ability to address the worst human rights violations committed by authorities all over the world. At its last session this year, the HRC once again failed to adequately address the ongoing violence in Yemen, instead adopting a resolution asking Yemen to investigate its own crimes – a feeble response to a full-fledged human rights and humanitarian emergency. In addition, the HRC remained silent while over 12,000 civilians were tried in military courts and unprecedented attacks against NGOs and human rights defenders were taking place in Egypt under military rule since the fall of Mubarak. When violence once again broke out in November, and another 41 deaths were added to the list of those killed in their fight for democracy in Egypt, one could still not expect, nor hope, that the HRC would be prepared to respond.

The degree of attention and action by the UN to promote and protect human rights and democracy within the Arab region during 2011 is historically unparalleled. However, the events of this year also served to emphasize the political limitations and double standards associated with the promotion and protection of human rights within the Arab region. These double standards were blatantly displayed by states from around the world at the HRC – by democracies and autocracies alike. The HRC had some accomplishments in 2011. In order for the HRC to genuinely strengthen its ability to fulfill its mandate of promoting and protecting human rights, in 2012 it will have to add to its list of accomplishments coherence and non-selectivity.

Laila Matar is the UN Advocacy Representative at the Cairo Institute for Human Rights Studies

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Australia’s new Attorney-General, Nicola Roxon, was sworn in on 14 December 2011.

We asked some of Australia’s leading human rights advocates, activists and academics to tell us, in less than 100 words, what the Attorney’s top human rights priority or initiative for 2012 should be. Here’s what they had to say.

My hope is that the new Attorney-General’s priorities will include bringing along her fellow ministers and parliamentarians in making the new human rights scrutiny processes effective and seeing through the consolidation of federal discrimination laws process to create an effective national equality law. She should also ensure the ratification of the Optional Protocol to the Convention against Torture and establish a national system of monitoring places of detention. Finally, the Attorney must ensure that human rights considerations inform policy in all areas of her portfolio, for example in security policy where there is an urgent need for a system enabling review of adverse security assessments.

With the start of a New Year and a new Attorney General in place there is a real opportunity to address the serious human rights violations that are currently occurring.

Amnesty International’s 142,000 supporters in Australia and our millions more across the world are looking to the new Attorney General to show leadership and implement the Government’s statements of commitment to human rights.

Real change, including significant legislative and policy reform must occur to ensure human rights are protected, including implementation of the 145 recommendations that the UN Human Rights Council made to the Australian government earlier this year.

A genuine commitment to upholding human rights needs to be at the core of Nicola Roxon’s work.

Apart from a Human Rights Act, the Attorney-General should make sure that ASIO decisions concerning refugees are timely and effectively reviewable. Boat people can remain in detention for many months – more than a year in some cases – after being assessed as refugees, waiting for an ASIO assessment. People assessed as refugees but adversely assessed by ASIO face lifetime detention, without being given reasons. ASIO refuses to give reasons for an adverse assessment, thus making judicial review extremely difficult. Al Kateb’s case means that a refugee who is refused a visa (because of ASIO) and cannot be removed from Australia (because they are a refugee) can stay in detention forever. The A-G needs to ask whether this fits our conception of a just society.

Over the last few years, the Australian Government has made progress in improving the protection of our basic rights. However, Australia still lacks a comprehensive human rights law. This increases the vulnerability of already disadvantaged people — like Indigenous Australians, people experiencing homelessness and people with a disability. To rectify this, the new Attorney-General should take the lead in fully implementing the recommendations of the 2009 National Human Rights Consultation, including by enacting a comprehensive Human Rights Act.

Rob McClelland was a good Attorney General for human rights. But he failed the biggest need and challenge, to achieve an Australian Charter of Rights – not through lack of personal commitment, it has to be said, but through Prime Ministerial and Labor Party opposition.

Nicola Roxon’s challenge is the unfinished business:

• having the new parliamentary human rights committee elected and put to work quickly and effectively
• completing outstanding treaty ratifications: the Optional Protocol to the Convention Against Torture, the Migrant Workers Convention, the Optional Protocols on complaints of violations of economic, social and cultural rights and of the rights of children
• ensuring that, at long last, Australia’s regime for boat people conforms with international human rights law
• most importantly, reviving work to get us an Australian Charter of Rights by 2014.

The 2011 Universal Periodic Review of Australia provides a useful agenda for the new Attorney-General. While various aspects of the Human Rights Council’s recommendations have been accepted by Australia, some of the major concerns have been rejected or sidelined. These include ensuring that the treatment of asylum-seekers is consistent with our international commitments and that Indigenous Australians can enjoy the rights set out in the Declaration on the Rights of Indigenous Peoples. Taking the UPR seriously not only at the domestic level but also in our foreign and aid policies would be a fruitful human rights investment for Australia.

The new Attorney should ensure that asylum seekers can access and exercise their legal rights. Since the High Court’s decision in M61, which confirmed that review by the courts is available to asylum seekers who are processed offshore, legal assistance providers have been hit with floods of applications for legal representation in judicial review proceedings. Despite the huge increase in demand, no extra funds have been provided and legal aid and community legal centres are turning away desperate people. The Attorney should provide funds to boost the capacity of refugee and immigration community legal centres and legal aid commissions to deal with these matters immediately.

There are many human rights priorities for Australia in 2012, such as properly implementing the new Human Rights (Parliamentary Scrutiny) Act and vastly improving this country’s impoverished refugee debate. As the number one priority, however, I would say that the Australian Government must take the lead in vigorously supporting amendment of the Australian Constitution to better recognise and protect the rights of Indigenous peoples, and to educate Australian people about the need for such amendment. A campaign against Constitutional recognition has already begun (see eg, J Albrechtsen in The Australian on 14 December). The government and the opposition must get on the front foot to counter the scaremongering.

I would prioritise the human rights of people in places of detention.

A significant proportion of Australia’s prison population suffer from mental illness. There is a causal and consequential link between imprisonment and mental illness. Australia is warehousing people with mental health problems in prisons, where mental health care is entirely inadequate.

The number of juveniles in detention is also a major concern, along with the over-representation of Aboriginal and Torres Strait Islander peoples. These issues raise significant concerns with respect to Australia’s obligations under the Convention against Torture, the Convention on the Elimination of Racial Discrimination and the International Covenant on Civil and Political Rights and require the urgent attention of the Australian Government.

Work has begun on the important work of consolidating federal anti-discrimination laws. This is a once in a decade opportunity not only to consolidate the laws but to modernise them and bring them into line with international developments in equality law. At a minimum, the federal government should provide leadership on the next generation of equality laws and ensure federal protection against discrimination for all those currently protected by state or territory laws, with the capacity to readily extend the protection to newly emerging disadvantaged groups. A proactive compliance model should be at the core of the reforms.

The Australian Government has a great opportunity to make life fairer for disadvantaged people through the consolidation of Commonwealth anti-discrimination laws project. This has the potential to impact on the most disadvantaged in our community – Indigenous peoples, particularly Indigenous women and Indigenous people with disability. The Attorney General’s Department has made a great start and should ensure creation of a pro active regulatory approach which doesn’t rely on individuals making complaints and can address systemic discrimination. For example a new framework can look at the experience of Indigenous women in getting secure, affordable housing and eradicate institutional barriers.

There are a range of areas where Australia’s treatment of asylum-seekers and refugees is inconsistent with international human rights obligations and domestic legal norms. A pressing reform priority is the management of ASIO security assessments. A growing number of people have been recognised as refugees but remain indefinitely detained due to negative security assessments, without any explanation of the basis on which they supposedly pose a security risk, and without any opportunity to respond to such concerns. This process needs to be brought in line with international and domestic principles of natural justice, and in particular, the provision of a meaningful opportunity to respond to adverse information, to challenge it, and access to independent review.

The first major announcement Nicola Roxon should make is that the Government will appoint a Commonwealth Children’s Commissioner. The Commissioner’s primary task should be to act as an advocate for children’s rights and interests. Children in many categories are significantly disadvantaged. These include Indigenous children, refugee children, homeless children, children with physical and mental disabilities, and children in state care. Yet they have no official representative to articulate their needs and their opinions. It is time they had one. The UN Committee on the Rights of the Child has recommended that Australia take this initiative. The A-G should seize this opportunity to make children’s rights real.

The challenge for any Australian Attorney-General is to put human rights principles ahead of political convenience.

This means standing up for accountability in respect of alleged torturers and war criminals, whether they are from the United States or Sri Lanka, on the one hand, or a conveniently deposed Libyan dictator on the other.

It is no more honourable, now, to encourage an international culture of impunity than it was when a former Australian government stood aside and allowed Australians, David Hicks and Mamdouh Habib, to be rendered, tortured and illegally imprisoned for years on end.”

Under the Federal Government’s Access to Justice Framework, better and more transparent primary decision making is a key goal.

Statistics show that nearly a third of challenged Centrelink decisions are changed on internal review and more are changed at higher tribunals. Similarly, poor primary decision by the Department of Immigration on refugee applications has meant that two out of three decisions have been overturned on appeal. In one of the least transparent exercises of government decision making, asylum seekers who have received negative security assessments not only have no right to appeal, they have no right to know the reasons behind the decision.

Restoring public confidence in effective, transparent decision making that is based on principles of fairness and justice and a respect of individuals’ rights would greatly improve access to justice and should be a key priority.

The Attorney’s priorities should be as follows:

1. Comprehensive national laws prohibiting sexuality and gender identity discrimination and vilification are long overdue. “Comprehensive” means no exemptions for church schools and welfare agencies.
2. It’s not enough for federal politicians to support marriage equality. If reform is to occur it needs heterosexual, front-bench champions like the Attorney-General. She must also remove the bureaucratic barriers to same-sex couples marrying overseas, immediately!
3. The civil and political rights of LGBTI people are still regularly violated and need the protection of a Charter of Rights. The ICCPR already acts as a de facto charter for Australia, albeit a weak one. It’s time for us “repatriate” our human rights protections so Australian human rights violations can be judged by Australian courts according to standards set by the Australian people.
4. The implementation of these reforms will not be easy. The Attorney must establish an LGBTI reference group to help her Department, similar to groups at the state level.

Pay very close attention to the newly established parliamentary human rights scrutiny committee. This is a sleeping giant, whose potential power and range is underappreciated; indeed largely unnoticed. Having authority to scrutinise all bills for compliance with all Australia’s international human rights obligations goes far beyond the scope of any equivalent mechanism overseas, and it will embarrass and expose. So, heads up for the enhanced human rights scrutiny of the next wave of immigration, anti-terrorism or workplace relations proposals.

PS. Don’t take up smoking this year.

Alongside the perennial challenge of how Australia treats those who seek asylum here, the Attorney-General’s particular human rights priority for 2012 is handling the lead-up to the referendum in the interests of Indigenous Australians. When the Expert Panel reports on its consultation process in mid-January, the ball is firmly back in the government’s court. I want to see less emphasis on simply ‘constitutional recognition’ and greater willingness to seize this once-in a generation opportunity to place a meaningful guarantee of racial equality in our Constitution for the protection of all in our community, but most importantly our First Peoples.

The prioritisation of efforts to address human rights considerations is always fraught with danger. But the reality of limited resources means that prioritisation is a fact of political life. Given this reality, the top priority for the new Attorney General in 2012 must be ensuring the successful implementation of the Human Rights (Parliamentary Scrutiny) Act 2011. The requirement to scrutinize all new legislation in light of international human rights standards must not be reduced to a shallow process of compliance. Instead, the Attorney General must lead from the front and demonstrate that substantive engagement with international human rights standards leads to more effective and equitable legislative outcomes.

On census night in 2006, approximately 105,000 Australians were homeless, including approximately 7,480 families. Australia needs a human rights-based framework for addressing homelessness.

In Victoria, we have seen how legislative protection of human rights can work in practice through the Victorian Charter of Human Rights. The HPLC has relied on the Charter’s binding obligations on public bodies – to give proper consideration to human rights in decision-making and to act compatibly with human rights – to avoid the eviction of 42 people, including 21 children, from social housing into homelessness.

Enforceable human rights obligations, including national homelessness legislation that enshrines the right to adequate housing, are critical to Australia’s ability to effectively prevent and address homelessness.

Lucy McKernan is Manager of Strategic Projects with the Public Interest Law Clearing House

That a five year old girl can be lawfully refused admission to a government funded kindergarten on the basis of her parents’ same-sex relationship, is a disgrace. Even the Acting Bishop for the relevant Catholic diocese was ‘appalled’ by the discriminatory decision, yet Australian laws allow this form of discrimination by religious organisations.

Attorney-General Roxon should remove the blanket exceptions for religious organisations permitting them to discriminate on the grounds of sex and age. At the very least, the Attorney should prohibit discrimination by religious organisations in respect of their government funded functions and require greater transparency from organisations seeking to rely on the exceptions. Importantly, the Attorney should also show leadership by encouraging her State counterparts to follow suit.

Les Malezer is Co-Chair of the National Congress of Australia’s First Peoples

The priority for Aboriginal and Torres Strait Islander Peoples is to gain recognition and respect as first peoples, and acknowledgement and protection of Indigenous rights.

In 2012, the Attorney General must make the Human Rights Framework effective, leading cultural change across government. For Aboriginal and Torres Strait Islander peoples this includes giving the recommendations and reports of the ATSI Social Justice Commissioner real authority, not just political lip service. The Government must also implement and be accountable to reports on human rights by national and international authorities. There should also be a focus on judicial and legal education, to ensure legal professionals understand Indigenous rights and can properly and impartially resolve cases regarding those rights.

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

It is not well-known that the Australian Attorney General presides over a regime under which suspected people smugglers, including children, are detained without charge for significant periods (in some cases, over 12 months) without access to a lawyer or judicial review of their detention.

The vast majority of those detained are young crew-members from impoverished Indonesian fishing villages who had no involvement in the organisation of people smuggling operations.

The Attorney General should act quickly to ensure that these people are afforded immediate access to a lawyer, are brought promptly before a court and are not subject to prolonged and arbitrary pre-charge detention.

Edwina MacDonald is Law Reform and Policy Coordinator with Women’s Legal Services NSW

The Attorney should prioritise eliminating violence against women. With one in three Australian women experiencing violence since the age of 15, violence against women is one of Australia’s most widespread human rights abuses. The recent amendments to the Family Law Act were a good step but much remains to be done. The Attorney should start by prohibiting discrimination against victims or survivors of domestic violence, implementing the Australian Law Reform Commission’s report on Family Violence and establishing an independent monitoring mechanism for the National Plan to Reduce Violence Against Women and Children, as recommended throughAustralia’s Universal Periodic Review.

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To celebrate Human Rights Week 2011, law firms Blake Dawson, DLA Piper and Mallesons Stephen Jaques will match your donations to the Human Rights Law Centre. This means that for every dollar you donate to us between 5 and 10 December, we’ll receive another dollar from our law firm partners!

Make a donation and double your human rights impact now!

For the last six years, we’ve promoted human rights through strategic advocacy, research, litigation and education. Together with key partners, we’ve established constitutional protection of the right to vote, improved access to healthcare for prisoners, provided human rights training to over 15,000 people, and held Australia to account for its human rights obligations on the international stage.

We desperately need your support to continue and build on our record of human rights impact and influence. We don’t receive any recurrent government funding and the funds we receive from philanthropic trusts are time-limited and project-based.

With this unique opportunity to double your investment, there’s never been a better or more important time to donate to the Human Rights Law Centre.

Thank you for supporting and standing with us.

Phil Lynch
Executive Director

Download the full edition of the Bulletin in PDF.

This edition of the Bulletin includes:

• Opinion piece by Rebecca Barber of Save the Children on Australia’s role in promoting and protecting human rights in Afghanistan
• A wrap up of the month’s human rights related news coverage
• International Human Rights Developments, including strengthening of the UN human rights treaty bodies and new procedures of the UN Human Rights Committee for reviewing non-reporting states
• National Human Rights Developments, including passage of the Human Rights (Parliamentary Scrutiny) Bills, AHRC inquiry into the detention of Indonesian children, bridging visas to enable community processing of asylum seekers and the UN expert on trafficking in persons concludes a fact-finding mission to Australia
• State-based Human Rights Developments, including the Coroner’s findings indicating urgent need for reform of police training on use of force
• Australian Human Rights Case Notes including consideration of the Victorian Charter post-Momcilovic and access to video link for an asylum seeker’s court proceeding
• A range of International Human Rights Case Notes including from the European Court of Human Rights, UN treaty bodies, Canada and the UK
• Information about the HRLC ’s policy and case work, including submissions on new people smuggling offences and reform of Australia’s Export Finance and Insurance Corporation, a legal challenge in relation to Occupy Melbourne, and raising awareness of human rights concerns in West Papua
• HRLC Media Coverage
• Details of forthcoming human rights seminars and events, including a joint event with HRW on human rights in Asia on 7 December
• Information about human rights jobs, including with Amnesty International
• Foreign Correspondent by Asger Kjaerum of the IRCT about the Committee against Torture’s recent November session
• ‘If I were Attorney-General’ by Elizabeth O’Shea, a lawyer practising in the area of human rights and social justice

Australia’s core mission in Afghanistan must be to promote and protect human rights

Next week, delegates from 90 countries will gather in Bonn to discuss the transfer of security responsibilities in Afghanistan to the national government by 2014. It will be ten years since the international community last gathered in Bonn to agree a framework for rebuilding this shattered, war-torn state.

As such, it’s a good time to reflect on what we’ve set out to achieve in Afghanistan over the past decade, both as a nation and as an international community.

At Bonn 2001, the international community expressed its determination to promote national reconciliation, lasting peace and respect for human rights in Afghanistan. Four years later, at a conference titled ‘Building on Success’, we renewed our commitment to build a “secure, prosperous, and democratic nation”, with “good governance and human rights protection for all under the rule of law.” We pledged to support the Afghan government to reduce hunger, poverty and unemployment. We agreed that national security and law enforcement agencies would adopt measures to prevent arbitrary arrest, detention and torture; and that the Afghan Independent Human Rights Commission (AIHRC) would be supported to monitor, investigate, protect and promote human rights. We said that we’d support the Government to implement the Action Plan on Peace, Justice and Reconciliation, aimed at promoting accountability for past human rights violations and war crimes. We committed to building a nationally respected, professional army and police force. And we said we’d strengthen the role of women in governance institutions.

Today in Afghanistan, these sound like lofty ideals.

Afghanistan today is one of the worst places in the world to be either a child or a mother. One in 11 women die during childbirth. With more than half of all Afghan girls marrying before their 16th birthday, many of the mothers dying in childbirth are themselves children. One in nine children die before their first birthday and one in five die before the age of five. More than 4 million children lack access to education, most of them girls.

The Action Plan on Peace, Justice and Reconciliation has been all but forgotten, and suspected war criminals dominate the political elite. President Karzai has described justice as a ‘luxury’, not to be pursued at the expense of peace. But you can’t have one without the other, and now in Afghanistan we have neither.

Women are poorly represented in peace negotiations, with just nine women in the 70 member High Peace Council. Moreover, recent statements both by the Afghan Government and the international community suggest that the once-strong commitment to women’s rights may be waning. As one Kabul-based embassy official explained, “we can’t impose [women’s rights] as a pre-negotiation red line because that will be counter-productive in getting to talks. Women’s issues are important but they are not our top priority.” Constitutional guarantees of gender equality already appear flimsy. In 2009, the government passed a law allowing men to deny their wives basic sustenance if they refused to submit to sexual intercourse.

The Afghan police are regarded as corrupt, abusive and incompetent, and a recent inquiry found evidence of widespread torture in Afghan detention facilities. The AIHRC has a critical role to play in holding the national security forces to account, but last year was so short of funds that it went several months without paying its staff.

In light of all this, the easiest option for Australia would be to cut our losses and leave state building to the Afghans. After all, state building was never really our objective, and the agreement between Karzai and the US to have combat troops out of the country by 2014 would have been a reasonable excuse for Australia to disengage.

Fortunately, we haven’t taken this option. Prime Minister Gillard has promised that we’ll remain in Afghanistan for another decade, at least. The commitment is impressive; the stated objectives, less so. Gillard said that we were staying the course firstly to make sure that Afghanistan never again becomes a safe-haven for terrorists, and secondly, to honour our alliance commitment to the US.

However, with ten years of engagement behind us and at least ten to go, we can and must do better than this. For starters, we need to shift the rhetoric and put the rights of the Afghan people at the heart of the post-transition strategy. So that when we talk about our objectives, we talk not about terrorist safe-havens or about allegiance to the US, but about providing a safe and secure environment where children go to school, women participate in political processes and state institutions are trusted and credible.

And then in the lead up to Bonn, we need to start thinking about what we can do for the Afghan people. We could ensure, for example, that the AIHRC always has enough money to pay its staff; and that relevant staff within the Ministry of Interior receive specialised training in investigating allegations of abuse. We could urge the Afghan Government to embrace the concept of external oversight of police, and promote understanding that ultimately this strengthens the credibility of the state. We could help to re-invigorate the National Action Plan for Peace, Justice and Reconciliation, such as by supporting vetting procedures for senior civil servants. We could seriously improve the quality of police training, as well as the institutional support that we provide for the Ministry of Interior. We could invest more in female teachers and health-workers. Finally, we could use our influence to ensure that any political settlement explicitly guarantees the rights of women and children.

With nearly $4 billion invested in Afghanistan, let us aim for something more than denying safe-haven for terrorists and sticking by the US alliance. Let us instead recommit to the promise we made in 2001 to create a stable and prosperous Afghanistan, with good governance and human rights protection for all under the rule of law.

Rebecca Barber is a Humanitarian Policy and Advocacy Advisor at Save the Children

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Parliament adopts modest but critical protections for human rights

Legislation requiring the Federal Parliament to consider international human rights obligations when making new laws has passed through parliament. The Human Rights (Parliamentary Scrutiny) Act 2011 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Act 2011 were warmly welcomed by the Human Rights Law Centre.

Delivering findings in relation to the death of 15 year-old Tyler Cassidy, who was shot by police in 2008, the Coroner has said Victoria Police urgently needs to focus its training on recognising and managing vulnerable young people.

The Age echoed the call for urgent reform of police training, while the HRLC said the Coroner’s recommendation that an independent person with a law degree should be present as an observer when the officers involved in similar incidents are interviewed by other police was only a partial answer to the problem of police investigating police.

The Federal Government will start using bridging visas to process asylum seekers in the community as part of a new onshore processing plan. The changes see a return to a uniform asylum-seeker processing regime for boat and plane arrivals. Asylum seekers on bridging visas will be given work rights and healthcare access but no Centrelink benefits. The plan was welcomed by refugee and human rights advocates, including UN High Commissioner for Human Rights Navi Pillay.

Australian Federal Police have dropped charges against at least 33 Indonesian children held in Australian adult prisons after a West Australian District Court ruled that wrist x-rays, previously used to establish prisoners’ age, are unreliable. Up to 100 people claiming to be children remain in Australian prisons. The detention of children in adult prisons is in breach of the UN Convention on the Rights of the Child claims Greens Senator Hanson-Young.

The Australian Human Rights Commission has announced that it will inquire into the detention of suspected people smugglers who might be underage and the Greens propose to introduce legislation that will require the government to prove a person is over 18 before placing them in adult detention facilities and prisons.

In a joint letter to Foreign Minister Kevin Rudd, the HRLC and Human Rights Watch have called for Australian monitors to be allowed into West Papua amid fears of another violent crackdown on pro-independence rallies marking the 50^th anniversary of the first raising of the West Papuan ‘Morning Star’ flag.

The Federal Government has sought public comment on draft legislation to broaden the crime of slavery and people trafficking. The bill would create new offences such as forced labour and forced marriage, and would make it a crime for anyone to harbour a victim of trafficking or slavery.

Prime Minister Julia Gillard said she would allow Labor Party MPs a conscience vote on gay marriage. However, the Prime Minister herself will not vote in favour of reform, despite a recent poll indicating that most voters support gay marriage and a conscience vote is almost certain to defeat any move to change the current marriage laws. Senator Penny Wong was among those who have spoken out against the proposed conscience vote.

The federal government has introduced its ‘Stronger Futures’ legislation, aimed at tackling the systemic disadvantage of Aboriginal and Torres Strait Islanders people. The bills were introduced into federal parliament amid criticism from the Northern Territory opposition that it ‘stamps all over’ Territory rights. Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda welcomed the legislation as a possible “long term solution” to the problems of chronic disadvantage.

Papua New Guinea passed a bill this week that will set minimum quotas for women in its parliament. The bill will reportedly reserve 22 of the total 109 parliamentary seats for women.

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Strengthening the UN Human Rights Treaty Bodies – Report on Dublin II

A process aimed at strengthening the UN treaty bodies, which was initiated by the UN High Commissioner for Human Rights in 2009, culminated in a meeting in Dublin, Ireland on 10-11 November. This followed two years of consultations, organised by different stake-holders, including meetings of NGOs that were convened in Seoul and Pretoria.

In Dublin, representatives from nine UN treaty bodies met to agree and sign up to an outcome document that is based on many of the proposals that have emerged from the stake-holder consultations, in addition to written papers that have been submitted and which are available at: http://www2.ohchr.org/English/bodies/HRTD/index.htm.

Other participants in Dublin included Ms Kyung-wha Kang, Deputy High Commissioner for Human Rights, representatives from four NGOs and three national human rights institutions, and a participant from a consultation of academics. These participants are expected to endorse the outcome document.

Many recommendations that have come from NGOs are reflected in the final text. For example, the assertion that “strengthening the treaty body system must result in strengthening the capacity of rights-holders to enjoy their human rights” was a recurring theme of NGO discussions and contributions. The document also captures the emerging good practice of some committees in making their procedures much more accessible and impactful. It encourages the treaty bodies to consider further means of doing so, such as holding in-country reviews of states reports and creating a reporting calendar for advance scheduling of reviews and deadlines.

There are also some more far-reaching recommendations. For example, to improve the membership of the treaty bodies, the outcome document suggests that states hold open and transparent national selection processes to nominate their independent experts. In line with recent international treaties, the final text also suggests that in future membership terms should be limited to a maximum of two full terms.

Another recommendation calls for consideration to be given to alternatives to traditional reporting methods, such as in situ (that is, in country) reviews that could be simultaneously undertaken by one or more committees, on the basis of  reports which are written in light of priority concerns identified by the treaty bodies.

While not a radical piece, the Dublin outcome text reflects many of the difficulties facing NGOs and other stake-holders in engaging with treaty body processes, as well as (many cost-neutral) steps to overcome these challenges. Yet, we can expect resistance from some states in supporting the recommendations. This is in part due to their reluctance to provide additional resources – the provision of which will be key to more ambitious proposals. There is also push-back from some states on the evolution of the treaty bodies, with some questioning the legitimacy of treaty bodies to undertake core functions like developing general comments.

States will have the opportunity to express their views during two further consultations in coming months. Then the High Commission for Human Rights will prepare a report for the General Assembly to be held in 2012. Consequently any final NGO contributions should be made by mid-February.

Tania Baldwin-Pask works in the International Advocacy Program with Amnesty International (International Secretariat)

The UN Human Rights Committee held its 103^rd session from 17October to 4 November 2011. States reports from Iran, Jamaica, Kuwait and Norway were reviewed and the Concluding Observations are now available at www.ohchr.org.

In addition to these four countries, specific attention should be given to the review of Malawi that was done in the absence of a state report. The initial report from Malawi had been due since March 1995. As provided for by the Committee’s Rules of Procedure, the review was held in a closed meeting and the provisional Concluding Observations will remain confidential until October 2012, pending the receipt of comments by the State.

This is, however, the last time that the Human Rights Committee will review non-reporting States in closed session. In the October session, a very important step was taken by the Committee, by deciding to amend rule 70 of its Rules of Procedure. This will allow the Committee to review non-reporting States in public session. In addition, the Concluding Observations will no longer be confidential, but instead will be released at the end of the session.

This is a major improvement in the work of the Human Rights Committee. It will ensure that all States are treated equally and reviewed under the same procedure. States that are not cooperating with the Human Rights Committee will non-longer benefit from the confidential procedure. It will also make the entire process more transparent and accessible to civil society and individuals of these countries.

Consequently, as from March 2012, the review of non-reporting States will be held in public session and will be web casted live. The next non-reporting States on the Committee’s agenda include Mozambique and Cape Verde, in March 2012 and Ivory Coast in October 2012. This will be a unique opportunity for NGOs to engage with the Committee and assess the implementation of the ICCPR at the national level.

To learn more about this new development, watch Mr. Rajsoomer Lallah, Committee member and for an interview in Spanish, watch Mr. Fabian Salvioli, Committee member.

Patrick Mutzenburg is Director of the Centre for Civil and Political Rights in Geneva

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Federal Parliament passes significant human rights legislation that will benefit all Australians

The passage of important legislation which requires the Federal Parliament to consider international human rights obligations when passing new laws has been warmly welcomed by the Human Rights Law Centre.

“The Federal Parliament has today taken a critical step in respecting and promoting human rights,” said Ben Schokman, the HRLC’s Director of International Human Rights Advocacy.

The new laws, passed by the Federal Parliament on 25 November, will provide a modest but critical contribution to the legislative and institutional protection of human rights, and will play an important role in human rights education and acculturation.

“Although it falls short of enshrining human rights in a national charter or bill of rights, this is an important step in the right direction. It will ensure the Federal Parliament will be more accountable and transparent about the human rights impacts of new legislation,” Mr Schokman said.

“These important new laws will benefit all Australians, but particularly groups such as the homeless, elderly persons, people with disability and Aboriginal and Torres Strait Islander peoples, all of whom were identified by the National Human Rights Consultation Committee as particularly vulnerable to breaches of their human rights,” Mr Schokman said.

The Human Rights (Parliamentary Scrutiny) Act 2011 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Act 2011 comprise key elements of the Federal Government’s “Human Rights Framework”, which gives effect to some of the key recommendations of the 2009 National Human Rights Consultation. The new laws:

• require that each new Bill introduced into Federal Parliament is accompanied by a Statement of Compatibility of the proposed law’s compliance with the seven core international human rights treaties to which Australia is party; and
• establish a new Parliamentary Joint Committee on Human Rights to provide greater scrutiny of legislation for compliance with Australia’s international human rights obligations.

The HRLC congratulates the Attorney General, the Hon Robert McClelland MP, for his leadership in seeing these laws through parliament.

The Australian Human Rights Commission has announced it will hold an inquiry into the treatment of suspected people smugglers who claim to be children.

“I have been concerned for some time that errors may have been made in the processes used to determine the age of these individuals,” Commission President Catherine Branson QC said.

“These errors may have resulted in children being detained for long periods of time in immigration detention and in adult prisons.

“The individuals of immediate concern are Indonesian nationals who have worked as crew on boats bringing asylum seekers to Australia and who have subsequently been investigated for people smuggling offences,” Ms Branson said.

Ms Branson said Australia has a range of human rights obligations in relation to unaccompanied children who arrive in Australia. She says she holds concerns for at least 20 individuals currently detained in adult prisons who say they are children.

“Australia has a responsibility to ensure that unaccompanied children who arrive in Australia are provided with special protection and assistance due to their vulnerability,” Ms Branson said. “Australia is also obliged to ensure that children deprived of their liberty are separated from adults in detention or prison.”

The Commission’s inquiry into the treatment of individuals suspected of people smuggling offences who say that they are children is expected to run until mid-2012.

Information about the inquiry can be found at www.humanrights.gov.au/ageassessment/index.html

Source: Australian Human Rights Commission

The Australian Human Rights Commission has welcomed the announcement that bridging visas will be granted to a group of asylum seekers who arrived in Australia by boat while their refugee claims are finalised. Ms Branson welcomed the government’s decision to make greater use of community-based alternatives such as bridging visas and community detention.

“The Commission has said for some time that asylum seekers who arrive by boat should be treated the same way as those who arrive by plane, and that they should be given bridging visas instead of being held in detention for long periods,” Commission President Catherine Branson QC said.

Ms Branson said bridging visas are a more effective, humane and cheaper alternative to the current approach of holding thousands of asylum seekers and refugees in remote immigration detention facilities around Australia for long periods of time. She emphasised that implementing a single system for determining asylum seekers’ refugee status promotes a fairer, more efficient and more cost-effective system.

However, Ms Branson said she was disappointed that the government was retaining the excision regime, meaning that asylum seekers that arrived by boat would only be granted access to the onshore processing system at the discretion of the Minister of the day.

The Human Rights Law Centre very warmly congratulates the legal team comprising the Refugee and Immigration Legal Centre, Allens Arthur Robinson, Debbie Mortimer SC and Richard Niall SC on being shortlisted as a finalist for the prestigious Australian Human Rights Law Award. The team has already been recognised for its work through the 2011 Tim McCoy Award and a Law Institute of Victoria President’s Award. The HRLC is proud to have nominated the team for each of these awards.

The legal team acted pro bono in two landmark High Court cases which have upheld human rights and the rule of law. Individually, each member of the team has also advised and acted pro bono in a significant number of other cases to promote and protect human rights.

In Plaintiff M61 v The Commonwealth & Ors (2010), the team acted on behalf of two Sri Lankan asylum seekers who arrived by boat at Christmas Island and sought to claim refugee status. In a unanimous decision, the High Court held that, despite the status of Christmas Island as an ‘excised offshore place’, the men were entitled to the full protection of Australian law and to procedural fairness.

In Plaintiff M70 v Minister for Immigration and Citizenship (2011), the team acted for two asylum seekers, including one 16 year old child, scheduled to be deported from Christmas Island to Malaysia for the processing of their refugee claims. In a 6-1 decision, the High Court held that under the Migration Act, the government could not send asylum seekers for processing to a third country unless that country satisfied certain criteria.

In both these landmark cases, the legal team acted pro bono and ensured not only that each of these plaintiffs would have their claims for refugee status determined in Australia under Australian law, but that the fundamental tenets of access to justice, procedural fairness, executive accountability and the rule of law were protected and preserved.

The HRLC also very warmly congratulates David Manne (Executive Director of the Refugee and Immigration Legal Centre) and Ron Merkel QC on being shortlisted for the prestigious Human Rights Medal. The HRLC is proud to have nominated both finalists for this award.

The United Nations Special Rapporteur on trafficking in persons, especially women and children, Joy Ngozi Ezeilo, has concluded her country visit to Australia. Ms Ezeilo conducted her official visit from 17 to 30 November to examine the situation of trafficked individuals and anti-trafficking measures in the country.

Ms Ezeilo is an independent expert mandated by the UN Human Rights Council to advocate for the prevention of trafficking in persons in all its forms and to encourage measures to uphold and protect the human rights of victims.

In her preliminary report released on 30 November 2011, Ms Ezeilo said that “Australia has demonstrated strong leadership in combating trafficking in persons regionally and domestically, however it needs to devote greater attention to the rights and needs of victims.”

Ms Ezeilo highlighted the need to improve support services, including accommodation, legal assistance and counselling services, to suspected victims of trafficking and de-link government support from participation in criminal justice processes. She also praised the recent release of an exposure Bill to expand the definition of trafficking to better address labour exploitation and forced marriage.

During Ms Ezilo’s country mission, the Human Rights Law Centre provided a briefing paper on the application of people smuggling laws to persons who may have been trafficked. The briefing paper makes the point that where a person has been recruited by means of deception for the purpose of exploitation – as may be the case for many of those charged with people smuggling offences – they meet the definition of a trafficked person under the Protocol and should be provided with adequate assistance and protection, not criminalised and subjected to lengthy jail terms in Australian prisons.

On this topic, Ms Ezilo expressed her concern about “the possibility of trafficked persons including children being arrested, detained for long periods and deported for breach of migration regulations without proper identification especially given the strong migration control policy of Australian government.”

A full report of the Special Rapporteur’s mission will be submitted to the UN Human Rights Council in June 2012.

The Public Interest Advocacy Centre (PIAC) is representing Mr Graeme Innes AM who is suing RailCorp for disability discrimination. He alleges that RailCorp has failed to consistently provide audible announcements on trains, in breach of the Disability Discrimination Act 1992.

Mr Innes, the Disability Discrimination Commissioner, commenced these proceedings in the Federal Magistrates Court.

Since 2007, RailCorp has been required under the Disability Standards for Accessible Public Transport 2002 to ensure that audible station announcements are made on all trains.

Mr Innes, who has been blind since birth, has already lodged 36 complaints with the Australian Human Rights Commission regarding failures by RailCorp to have audible announcements on trains. Attempts by Mr Innes to resolve his complaints with RailCorp through the Commission have failed.

Mr Innes explains: “For a person who is blind or has low vision, such as myself, the major problem with catching trains is knowing what station you have reached.”

“Missing the right stop means getting off at an unfamiliar station. Locating the right platform to catch a train back to the intended station is not just inconvenient – it can sometimes be extremely stressful, and is usually quite time-consuming.”

“This is a major failure by RailCorp,” PIAC CEO Edward Santow said. “The fact that Mr Innes has made 36 separate complaints in seven months suggests the problem is systemic and ongoing.”

Graeme Innes says: “I am just asking RailCorp to treat me and other blind people in the same way as all other passengers – tell us where we are.”

Source: Public Interest Advocacy Centre

On 24 November 2011, the Federal Government tabled its response to the House Standing Committee on Aboriginal and Torres Strait Islander Affairs Report, entitled Doing Time – Time for Doing: Indigenous Youth in the Criminal Justice System. The Attorney-General, Robert McClelland, announced that the Government had accepted the 40 recommendations made by the report, albeit some in part or in principle. The Attorney-General emphasised that a number of the recommendations have already been actioned by the Government, including providing $490 million over three years to foster support for Aboriginal and Torres Strait Islander families, improving child wellbeing and developing stronger community bonds. In addition, the Government has ordered the construction of two boarding facilities (one in Garrthalala in East Arnhem and the other in Wadeye in the Northern Territory). The boarding facilities have the stated purpose of “improving educational engagement and completion in remote communities”.

Other courses of action currently underway include the development of a strategy to prevent suicide in Aboriginal and Torres Strait Islander communities, fostering partnerships with State and Territory Governments to guarantee that police benefit culturally relevant training, and evaluating the existing Indigenous justice programs to establish best practice guidelines under the National Indigenous Law and Justice Framework.

In response to the Report, the Attorney-General expressed concern at statistics which continue to highlight the overrepresentation of young Aboriginal and Torres Strait Islander people in juvenile detention facilities.  Such high levels of incarceration remain at unacceptably high levels, despite the recommendations of the Royal Commission into Aboriginal Deaths in Custody over 20 years ago. Many of the Royal Commission’s 1991 recommendations have still not been implemented.

Richard Collins is undertaking an internship with the Human Rights Law Centre

The Federation of Community Legal Centres (Victoria) is contributing to a submission to the Commonwealth Attorney-General’s Department, on the consolidation of Commonwealth anti-discrimination laws (submissions due 1 February 2012).

At present, it is not unlawful to discriminate against someone on the basis that they are a victim/survivor of domestic/family violence. The Federation will submit that domestic/family violence victim/survivor status should be added to the existing list of attributes upon which it is unlawful to discriminate.

To strengthen the Federation’s submission, they are seeking examples and case studies where victims/survivors may have been discriminated against on this basis. Their definition of domestic/family violence is broad, as in the Family Violence Protection Act 2008. Relevant areas of discrimination include renting a house, buying goods or services, applying for or being dismissed from a job, and education. The Federation is interested in examples where the person was discriminated against on the basis of being a current victim or survivor, or on the basis of past victimisation.

If you have one or more examples to contribute, please fill out the online form here.

This is an opportunity to provide evidence to the federal Government to influence law reform on an important issue of justice. If you have any examples, please respond by 19 December.

In early November 2011, State and Territory Policy Ministers entered an agreement to support a new nationally coordinated scheme for domestic and family violence orders. As it stands, people who have a domestic and family violence order are required to register in each new jurisdiction they enter to maintain protection.

Attorney-General Robert McClelland and Minister for Home Affairs and Justice Brendan O’Connor supported this move to increase coordination and ensure that domestic and family violence orders are automatically recognised when people travel across State and Territory borders. The nationalisation of domestic and family violence orders implements a commitment under the National Plan to Reduce Violence against Women and their Children 2010-2022.

The Standing Council on Law and Justice are currently considering the draft legislation.

On 23 November 2011, the Minister for Indigenous Affairs Jenny Macklin introduced the Stronger Futures in the Northern Territory Bill 2011 to replace the 2007 Northern Territory Emergency Response.

The 10 year plan under Stronger Futures focuses on three key measures affecting Aboriginal people in the Northern Territory.

First, alcohol-related measures (such as ‘alcohol protected areas’, alcohol management plans, alcohol restrictions and increased penalties for ‘grog running’) aimed to reduce alcohol abuse and alcohol-related harm.

Second, land reform measures to facilitate voluntary long term leasing for both individual and business property rights and interests, with the aim of promoting secure land tenure for economic development on Aboriginal land.

Third, food security measures through the community stores licensing system to regulate Aboriginal communities’ access to food, drink and grocery items.

The Social Security Legislation Amendment Bill 2011 complements Stronger Futures to implement the income management aspects of the proposals. Under alcohol management measures, social security benefits paid to Aboriginal people can be deducted under income management regimes if they do not abide by alcohol management plans. Under the School Enrolment and Attendance Measures (SEAM), parents’ income support payments are tied to their child’s school attendance.

The response to Stronger Futures has been mixed. The Federal Government and Aboriginal and Torres Strait Islander Social Justice Commissioner Mick Gooda support the measures’ potential impact for social change, while a number of NGOs such as ACOSS and the Aboriginal Peak Organisations of the Northern Territory have called on the Government to focus on cooperation and scrap the discriminatory aspects of the measures. There is contention about the best way to implement long-term, financially sustainable measures which engage local communities to manage their own affairs. At this stage, it is unclear whether Stronger Futures will achieve its goal of supporting Aboriginal people in the Northern Territory to live “strong, independent lives where communities, families and children are safe and healthy.”

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Police shooting: Coroner’s findings highlight urgent need for reform of police training on use of force

Victoria Police must take a new approach to handling confrontation with people in crisis, the Human Rights Law Centre has said, following the 23 November release of the findings of the coronial inquest into the 2008 police shooting of Melbourne teenager Tyler Cassidy.

The Human Rights Law Centre’s Director of Advocacy and Strategic Litigation, Anna Brown, said it is important to keep in mind that the police shooting of Tyler Cassidy was not a one off.

“More people are shot dead by police in Victoria than in any other state. Unless the Victoria Police force fundamentally change the way they deal with people in crisis, history will continue to repeat itself,” Ms Brown said. “We welcome the Coroner’s call for ‘urgent’ reform of police training to ‘safely manage vulnerable youth and people in crisis’,” said Ms Brown.

As well as structural reform, Ms Brown said a cultural shift was required within Victoria Police, which on average uses force every 2.5 hours.

“Only 73 seconds elapsed between the police first approaching Tyler and him being shot dead. In this short time, Tyler was sprayed with capsicum foam twice, took a phone call and was shot 10 times. Tyler may have been highly agitated and distressed, but police protocols and training should provide officers with the ability to safely deal with a wide range of circumstances without resorting to lethal force,” Ms Brown said.

The HRLC considers that Victorian law and the Victoria Police Manual need to be amended to make it clearer that force is only lawful as a last resort and when strictly necessary.

“Situations do arise where police may need to use force, but it should only be used with the utmost restraint and in a manner which minimizes damages and injury. Force should only be used to safeguard life and property, not for behavioural or compliance purposes,” Ms Brown said.

The Coroner’s findings also highlight the inadequacy of current systems for the investigation of police related deaths, which involve police investigating police. However, Ms Brown said that the Coroner’s recommendation that an “institutionally independent legally trained person” be available to observe the interviewing of police officers implicated in deaths is only a partial answer.

“Human rights law and international best practice require that such investigations be conducted by a body that is fully independent of police. An independent investigative body would not only reduce the risk of collusion or corruption, but increase public trust and confidence in police processes,” said Ms Brown.

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

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Australian Human Rights Case Notes

Victorian Court of Appeal considers Charter post-Momcilovic

WK v The Queen [2011] VSCA 345 (30 November 2011)

Summary

In a recent appeal from an interlocutory decision of the County Court, the Victorian Court of Appeal held, by a majority of 2:1, that s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is applicable to the interpretation of the Surveillance Devices Act 1999 (Vic). Only His Honour Nettle JA considered the implications of the recent High Court decision in Momcilovic v The Queen [2011] HCA 34. However, all three judges agreed that the trial judge in this case:

• erred in holding that a recording of a private conversation between the defendant (WK) and his alleged victim (DTY) was prohibited under the Surveillance Devices Act, but
• was correct in admitting a transcript of the recording into evidence, regardless of the privacy issues involved.

Facts

WK is alleged to have attempted to procure sex from DTY by threat or intimidation. Crucial to the prosecution case was a recording of a conversation between WK and DTY, made on a tape recorder provided to DTY by the police. WK appealed the trial judge’s decision to admit a transcript of the tape recording into evidence, arguing that it was not authorised by the Surveillance Devices Act and should have been excluded under the Evidence Act 2008 (Vic). Section 6 of the Surveillance Devices Act prohibits the use of a listening device to record a private conversation between two other people without their consent. The trial judge actually issued an interlocutory ruling that the recording was made unlawfully, but, after weighing this fact against its probative value, refused to exclude it.

Given the implications of this provision for human rights, the Court of Appeal (by majority) considered its interpretation must be subject to s32(1) of the Charter, which requires that statutory provisions be interpreted consistently with human rights “so far as it is possible to do so consistently with their purpose.”

Decision

The Court of Appeal comprised Maxwell P, Nettle and Harper JJA. Maxwell P began by noting that Victoria Police have to date considered that s 6 of the Surveillance Devices Act does not prevent them from supplying equipment to others to record their own private conversations (as opposed to police recording them directly). This approach, His Honour noted, was vindicated in the case of R v Bandulla [2001] VSCA 202 (a pre-Charter case).

WK contended that a broader interpretation of the “use” of a listening device should include indirect use (through an agent) of such a device to obtain evidence, since the practice had implications for the right to privacy under s 13 of the Charter. If police were free to make recordings of private conversations without “judicial or regulatory supervision,” WK argued, arbitrary interferences with privacy in contravention of s 13 would be the result.

Maxwell P responded that such an interpretation would effectively criminalise accepted police practices, which would amount to an amendment of the legislation rather than a mere reinterpretation. This, he noted, would exceed the Court’s powers as discussed in Momcilovic v The Queen [2010] VSCA 50 (subsequently [2011] HCA 34). His Honour pointed out that s 6(2)(c) of the Surveillance Devices Act specifically exempts law enforcement officers who record a private conversation with the consent of only one party – reinforcing the view that the legislation was not intended to criminalise this aspect of police procedure. In any event, His Honour found no breach of WK’s right to privacy, and concluded that the trial judge was correct to admit this evidence, which is of “very significant probative value.”

Nettle JA agree with Maxwell P that the evidence should have been admitted, but on a slightly different basis. His Honour observed that:

the judgments in Momcilovic v The Queen do not yield a single or majority view as to what is meant by interpreting a statutory provision in a way that is compatible with human rights within the meaning of s 32 of the Charter. As it appears to me, French CJ and Crennan and Kiefel JJ took a view of s 32 which is similar to that adopted by this court in Momcilovic; Gummow, Hayne and Bell JJ took a broader view of s 32, which attributes greater significance and utility to s 7; and Heydon J concluded that s 32 is invalid. Assuming that s 32 is not invalid, one is left with a choice between the other two approaches.

Nettle JA said the trial judge had adopted the approach advocated by French CJ and Crennan and Kiefel JJ – effectively he considered s 6 as though there were a conflicting (unqualified) right to privacy in the common law. If he had instead followed the Gummow/Hayne/Bell JJ approach, he would have treated the right to privacy as subject to s 7 of the Charter (the general limitation provision). Choice of this latter approach, according to Nettle JA, might have resulted in a different conclusion because the right to privacy would be subject to “such reasonable limits as can be demonstrable justified in a free and democratic society….”

Nevertheless, Nettle JA ultimately concluded that neither approach would render the police conduct unlawful in this particular case, because the purpose of the Surveillance Devices Act, as reflected in s 11, clearly allow for limitations on the right to privacy for law enforcement purposes. Even if the recording had contravened the Act, His Honour held, the trial judge should still have admitted it under the Evidence Act rules concerning unfair admissions and improperly/unlawfully obtained evidence (ss 90 and 138).

Harper JA found that the applicant had, in the circumstances, “no possible right to privacy” because “an offender who is caught in the act cannot require that the direct evidence of those who saw or heard the commission of the crime be excluded on the basis that otherwise some right he or she has to his or her privacy will be infringed.” His Honour therefore found s 32 of the Charter to be irrelevant and agreed that the appeal should be dismissed.

As Nettle JA noted, the Charter’s first major test in the High Court (Momcilovic v The Queen) did not result in clear authority on how lower courts should approach their interpretive duties under ss 7 and 32. As such, the question of whether human rights-consistent interpretations of legislation under s 32 are to be considered in light of the general limitations in s 7 remains open.

The Court of Appeal’s decision can be found online at: http://www.austlii.edu.au/au/cases/vic/VSCA/2011/345.html

Adam Fletcher is Manager of the Accountability Project at the Castan Centre for Human Rights Law and a volunteer with the Human Rights Law Centre

Minister for Immigration and Citizenship v MZYLE [2011] FCA 1210 (25 October 2011)

Summary

The Federal Court held that an asylum seeker is entitled to be present at the proceedings via video link at the expense of the Minister to ensure access to justice and open justice and due to the potential for the proceedings to immediately and significantly affect the rights of the respondent.

Facts

MZYLE (the Respondent) is a Sri Lankan asylum seeker who arrived at Christmas Island in February 2010 but is currently detained in Darwin by the Department of Immigration and Citizenship. His application for refugee status was refused. He obtained pro bono legal assistance through Victoria Legal Aid, who lodged a successful appeal in the Federal Magistrate’s Court against the original recommendation to reject his application. It is from this decision which the Minister appealed.

The Respondent sought to require the Minister to pay for the cost of a video link so that he could observe and/or participate in the Melbourne hearing from Darwin.

Decision

Justice North held in favour of the respondent for two main reasons.

First, North J noted the ability to observe proceedings is central to the principles of access to justice and openness in justice. Despite arguments to the contrary by the Minister, this is so regardless of whether the Respondent is represented by counsel, whether such attendance is ‘necessary’ for the purpose of the hearing or whether they can ‘understand’ the proceedings. North J noted this is so because “the ability to see for themselves that the legal system has taken their case seriously lies at the heart of requirements of free access to the law and open justice.”

Secondly, in North J’s opinion, the request to witness the proceedings is a reasonable one, particularly given the propensity of the proceedings to have “immediate and direct personal consequences for an asylum seeker”.

North J offered two further, subsidiary reasons in support of his decision. First, the respondent was located in Darwin due to a decision of the Department of Immigration and Citizenship. Secondly, he analogised the public law nature of the proceedings with that of the criminal jurisdiction. Victorian law entitles defendants in criminal appeals to be present in the Court on hearing of appeals; by extension, this rule also applies to public law proceedings.

The cost of providing the requested video link was also briefly discussed, with North J noting that there were currently 256 cases involving asylum seekers pending. North J found that the financial burden to the Department, if a one hour video link costs $712 and all represented litigants are entitled to such a link, could not be considered “overly substantial”.

Implications

North J suggests that there are two questions which must be answered when determining whether the Department should be required to secure the attendance (at least in the virtual sense) of an asylum seeker respondent:

• Is it reasonable for the respondent to want to be present?
• Who is responsible for the geographic distance between the respondent and place proceedings are to be heard?

Despite taking the path to participation least burdensome to the Department by seeking a funded video link instead of personal presence, the high-level arguments of North J leave open the possibility of requiring the Department to cover the cost of transporting a respondent to enable observation or participation in proceedings.

Perhaps most importantly, North J’s decision recognises that the principles of openness, fairness and access – foundations of our legal system – are intended to protect from the overzealous exercise of power by the State. Failing to provide for the observation of that exercise of power by those who will be affected undermines the foundations of system itself.

The decision can be found online at http://www.austlii.edu.au/au/cases/cth/FCA/2011/1210.html.

Liz Austin is a volunteer lawyer at the Human Rights Law Centre

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Treatment and conditions of detention for women must be gender-sensitive, says CEDAW

Inga Abramova v Belarus, Communication No. 23/2009, UN Doc. CEDAW/C/49/D/20/2008 (2011)

Summary

The Committee on the Elimination of Discrimination against Women has found that Belarus’ treatment of a woman detained under administrative arrest violated articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with article 1 and the Committee’s General Recommendation No. 19 on violence against women.

Facts

The District Court of Belarus found Inga Abramova guilty of “minor hooliganism” for hanging ribbons and posters calling for participation in the “European March,” and ordered her to serve five days administrative arrest. Abramova claimed that a male staff member subjected her to a body search, touched her inappropriately, and threatened to strip her naked. She further claimed that she was detained in an underground cell in a facility staffed entirely by men.  According to Abramova, the facility housed persons detained on criminal charges as well as those under administrative arrest. Among other things, Abramova also claimed that: she was only fed twice a day; the heating system was turned off, despite almost freezing temperatures; there was inadequate light and ventilation; other prisoners and male staff could watch her use the toilet; and she was subjected to frequent humiliating comments.

Following unsuccessful attempts to obtain redress at the domestic level, Abramova submitted a communication to the Committee in which she alleged violations of articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of CEDAW, read in conjunction with article 1. In a further submission to the Committee, the author reiterated that her communication was concerned primarily with the discrimination she experienced as a woman detained at the aforementioned facility, rather than the conditions of detention per se.

Decision

The Committee found that Belarus’ treatment of Inga Abramova constituted discrimination and sexual harassment, in violation of articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of CEDAW, read in conjunction with article 1 and the Committee’s General Recommendation No 19. In reaching its determination, the Committee also took into account rule 53 of the Standard Minimum Rules for Treatment of Prisoners and the UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders.

In reaching its views, the Committee reiterated that failure of detention facilities to adopt a gender-sensitive approach to the specific needs of women prisoners constitutes discrimination, within the meaning of article 1 of CEDAW. Recalling rule 53 of the Standard Minimum Rules, which is consistent with the definition of discrimination against women in article 1 of CEDAW, the Committee explained that:

• In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.
• No male member of staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.
• Women prisoners should be attended and supervised only by women officers.

The Committee further reiterated that sexual harassment is a form of gender-based violence against women that is prohibited under CEDAW.

In its recommendations, the Committee called on Belarus to provide appropriate reparation, including compensation, to Abramova. In addition, it recommended that Belarus take measures to, inter alia: protect the dignity, privacy and physical and psychological safety of women detainees; ensure access to gender-specific health care for women detainees; and provide safeguards to protect women detainees from all forms of abuse, including gender-specific abuse.

Relevance to the Victorian Charter

The Victorian Charter makes no express reference to the obligations of public authorities with respect to women prisoners. However, several Charter rights, when interpreted together, impose obligations on public authorities to adopt measures to address the specific needs of women prisoners and protect them against discrimination and harassment. These include the rights to non-discrimination and equality (s 8), freedom from torture and cruel, inhuman or degrading treatment (s 10), freedom from arbitrary interference in private life (s 13), and the right to humane treatment when deprived of liberty (s 22).

The decision is available at: http://www2.ohchr.org/english/law/docs/CEDAW-C-49-D-23-2009.pdf

Simone Cusack is Senior Policy & Research Officer in the Australian Human Rights Commission’s Sex and Age Discrimination Unit

V.C. v Slovakia [2011] ECHR 1888 (8 November 2011)

Summary

In this case, the European Court of Human Rights held that the sterilisation of a woman, in circumstances where “consent” to the procedure was obtained during the late stages of her labour, violated her right to private life and the prohibition against torture and ill-treatment.

Facts

The applicant, VC, is of Roma ethnic origin, living in North-East Slovakia. Born in 1980, VC finished compulsory schooling in sixth grade and at the time of the case, was unemployed. She speaks the Roma language and a local dialect in her day-to-day activities.

In August 2000, VC gave birth to her second child by Caesarean section at the public Prešov Hospital. During the procedure, the hospital sterilised VC by severing and sealing her fallopian tubes to prevent future fertilisation.

According to the hospital, VC had consented to the procedure after having been informed of the medical risks associated with a subsequent pregnancy. VC’s signature was evident on the consent form (albeit shaky and with her surname split), and the medical records stated that “Patient requests sterilisation” at 10.30 am. The medical records also include “Patient is of Roma origin”.

According to VC however, the hospital’s account is not an accurate and complete statement of events.

VC arrived at Prešov Hospital in labour shortly before 8 am. Previously, her eldest child had been born by Caesarean section due to the small size of her pelvis. This, and post-operative complications from her first pregnancy, led to the medical decision to deliver this child also by Caesarean section. VC submitted that after several hours of being in labour and pain, the Prešov Hospital medical personnel asked her whether she wanted to have more children. VC responded that she did, but was told that if she had another child, either her or the baby would die. According to VC, she began to cry, and convinced that her next pregnancy would be fatal, she responded “do what you want to do”. She was then asked to sign the medical record that stated that she had requested sterilisation. VC did not understand the term ‘sterilisation’, and, being in the last stage of labour, her recognition and cognitive abilities were influenced by labour and pain.

At 11.30 am, VC was put under anaesthetic and the delivery was completed by Caesarean section. The two doctors involved in the delivery then performed a tubal ligation on VC. She awoke from the anaesthetic at 12.20 am.

After the birth, VC alleges that she was put in a hospital room solely for women of Roma ethnic origin, and was prevented from using the same bathrooms as women not of Roma origin.

Since the sterilisation, VC has suffered from serious medical and psychological after effects, including a phantom pregnancy. As a result of her sterilisation, VC has also been ostracised from the Roma community, separating, and ultimately divorcing, from her husband due to her inability to have further children.

Decision

The Court found that Slovakia had breached VC’s right to freedom from torture or inhuman or degrading treatment or punishment under article 3 of the European Convention, which “enshrines one of the most fundamental values of democratic society” (at [100]). In addition, the Court found that Slovakia had breached VC’s right to private and family life under article 8 of the Convention.

VC also submitted that her rights to marry and found a family under article 12, to an effective remedy under article 13, and to freedom from discrimination on the base of race and sex under article 14 of the Convention had been breached. The Court however found that it was not necessary to separately determine whether the facts of the case gave rise to breaches of articles 12 and 14, and that there was no breach of article 13 when taken into consideration with the other breaches.

The Court’s approach to each of these submissions are discussed in turn below.

Article 3

Article 3 of the Convention contains the right to freedom from torture or inhuman or degrading treatment or punishment. In order to engage the operation of this article, the ill-treatment must be of a minimum level of severity, determined by consideration of the circumstances of the case.

The Court referred to precedent which has established that the treatment of a person by a State engages article 3 where it results in bodily harm of a certain degree of severity. Medical necessity is however a logical exception to the operation of article 3 under these circumstances, but must be proven and still follow procedural guarantees and protections. In particular, given the “very essence of the Convention is respect for human dignity [and] freedom”, free, full and informed consent is fundamental to any medical procedures, even where necessary (excluding certain emergency situations).

The Court found that sterilisation resulted in bodily harm to VC of a sufficient severity to engage operation of article 3. In particular, the Court held that:

sterilisation constitutes a major interference with a person’s reproductive health status. As it concerns one of the essential bodily functions of human beings, it bears on manifold aspects of the individual’s personal integrity including his or her physical and mental well-being and emotional, spiritual and family life. It may be legitimately performed at the request of the person concerned, for example as a method of contraception, or for therapeutic purposes where the medical necessity has been convincingly established.

VC began her legal action after the release of the report ‘Body and Soul: Forced and Coercive Sterilisation and Other Assaults on Roma Reproductive Freedom in Slovakia” which informed VC that a tubal ligation was not a life-saving surgery, and that full and informed consent was required to perform the procedure.

The Court addressed the difficulties faced by courts when assessing the application of the law to cases of medical necessity, stating (at [110]) that “it is not the Court’s role to review the assessment by medical doctors of the state of health of the applicant’s reproductive organs”. Having referred to a series of international reports on human rights and sterilisation, the Court continued: “however, it is relevant to note that sterilisation is not generally considered as a life-saving surgery … as there was no emergency involving imminent risk of irreparable damage to the applicant’s life or health, and since the applicant was a mentally competent adult patient, her informed consent was a prerequisite to the procedure, even assuming that it was a ‘necessity’ from a medical point of view.”

The Court found that the approach taken by the doctors at Prešov Hospital was incompatible with VC’s human rights; in particular, “such a threat was not imminent as it was likely to materialise only in the event of a future pregnancy and it could also have been prevented by means of alternative, less intrusive methods”.

The Court concluded that there was no indication that there was any unique medical necessity to perform the sterilisation. Regardless of a medical necessity, in the absence of an emergency situation, the Court found that VC had not given free, full and informed consent to her sterilisation as required by international standards under the Convention on Human Rights and Biomedicine, the WHO Declaration on the Promotion of Patients’ Rights in Europe, and CEDAW General Recommendation No. 24.

The Court also made a statement with respect to “paternalistic” decision making by treating medical practitioners, stating that “the applicant’s informed consent could not be dispensed with on the basis of an assumption on the part of the hospital staff that she would act in an irresponsible manner with regard to her health in the future” (at [113]). While this statement is made in respect of the facts of this case, it provides a useful summary of principle regarding determinations in the “best interests of the patient” by doctors.

Article 8

It was not disputed between the parties that the sterilisation affected VC’s reproductive health status, and had repercussions for her private and family life. VC submitted that Slovakia had failed in its positive obligation under article 8 to ensure that her private life was not interfered with by not securing the rights guaranteed under article 8 in the Slovakian legal system. In particular, Slovakia was under a positive obligation to ensure that the reproductive health of women of Roma origin was protected through legal safeguards (at [145]).

Documents were tended before the Court that included concerns from the Council of Europe Commissioner of Human Rights that the Roma population of eastern Slovakia was at particular risk of improper sterilisations. These documents included recommendations that more adequate safeguards be developed to protect Roma women from inappropriate sterilisations and discrimination. The identification of VC’s ethnic origin in her medical reports, and testimony from the treating doctors that stated that VC’s case was “the same as in other similar cases”, was deemed by the Court to demonstrate the medical staff’s negative opinion of Roma patients, rather than the basis of implementing more specialised care.

Whilst Slovakia had taken steps to amend its healthcare legislation to ensure fully informed consent was obtained in sterilisation procedures, these amendments were subsequent to the facts of VC’s case. The Court found that VC’s case in fact demonstrated that the laws at that time were not sufficient. As a result, the absence of the relevant legal safeguards to protect the reproductive health of VC as a Roma woman resulted in a failure by Slovakia to comply with its positive obligation to secure protections to enable her to enjoy her right to respect for private and family life.

Article 12

Similar to article 14 below, the Court found that it was not necessary to determine article 12 separately in light of findings under article 8 of the Convention. Article 12 expresses the right to marry and found a family. VC submitted that her right to found a family was breached by the sterilisation. The Court found that the sterilisation did have a serious impact on her family life, however as this was considered and found for under examination of article 8, the Court held that it was absolved from separately determining a breach under article 12.

Article 13

VC submitted that she was not provided with an effective remedy in respect of her complaints relating to articles 3, 8 and 12 of the Convention. Article 13 provides that where an individual’s rights under the Convention have been violated, they shall have an effective remedy from the State. The Court found no breach of this article as VC had had two opportunities for her case to be reviewed at the domestic level. The Court reiterated that an “effective” remedy need not be a “successful” one (at [165-166]).

Article 14

Article 14 prevents discrimination against a person on the basis of, inter alia, race and gender. VC submitted to the Court that her ethnic origin had played a decisive role in the Prešov Hospital medical personnel’s decision to sterilise her. Referencing the Convention on the Elimination of all forms of Discrimination Against Women, VC also submitted that the differentiation of level of medical care between men and women in the health services was a breach of the prohibition of discrimination on the grounds of sex, and the sterilisation performed on her without her informed consent amounted to a form of violence against women. The Court found that there was not sufficiently strong evidence to prove VC’s submissions under this article, but rather than find no breach, the Court found that it was more appropriate to deal with these matters as part of the failure of the State to perform its obligations in respect of article 8.

It was under this article 14 that the dissenting judge, Mijovic J, differed from the majority. Mijovic J held that a breach of article 14 should have been considered separately, and having done so, found that article 14 had indeed been breached by Slovakia.  Mijovic J found that the “special attention” granted to VC as a Roma woman was to sterilise her, and in a short, but sharp, dissenting judgement on article 14, held that this case demonstrated the “relics of a long-standing attitude towards the Roma minority in Slovakia” which “represents the strongest form of discrimination”.

The case is available at: http://www.bailii.org/eu/cases/ECHR/2011/1888.html

Alexandra Phelan is a lawyer with the Mallesons Stephen Jaques Human Rights Law Group

R v Nakamura, 2011 BCSC 1443 (26 October 2011)

Summary

This case concerns a voir dire ruling made by the Supreme Court of British Columbia to exclude from the proceedings an incriminating statement made by one of the two accused on the basis that the accused was not advised upon being detained of the right to counsel. Pursuant to s 10(b) of the Canadian Charter of Rights and Freedoms, everyone has a guaranteed right upon on arrest or detention ‘to retain and instruct counsel without delay and to be informed of that right’. Section 24(2) of the Charter provides for the exclusion of impugned evidence if admission of the evidence would bring the administration of justice into disrepute.

Facts

The two accused were charged with aggravated assault and assault with intent to steal. Both gave statements to police which were the subject of the application. The accused Vincent was initially taken to the police station simply for questioning and was informed that he could leave at any time. However, following an aggressive interrogation during which the interviewing officer threatened to go to Vincent’s home with a warrant for arrest, Vincent confessed, implicating the other accused, Nakamura. Vincent was read his Charter rights just prior to having his statement taken.

The accused Nakamura was an Asian male whose second language was English. Upon his arrest, and then again just prior to having his statement taken, Nakamura was advised of his right to counsel and was asked whether he understood this right. He was further advised that he had the right to a reasonable opportunity to contact counsel.

Decision

The Court confirmed that the onus is on the accused to establish a Charter breach on a balance of probabilities. The burden of proving certain contested issues, however, shifts to the Crown. For example, once the accused shows that his or her right to counsel was infringed, it is for the Crown to establish that the accused would not have conducted him or herself differently.

The test for valid waiver of the right to counsel is whether the person waiving the right actually knows what he or she is giving up. Where special circumstances exist that would reasonably alert the officer informing the accused of this right that there may be a language comprehension difficulty, the police office must take further steps to ensure a detainee understands their Charter rights.

In respect of the Nakamura statement, it was found that, despite Nakamura’s language difficulties, the circumstances showed that he was “sufficiently proficient” in English to be able to grant a valid waiver of his right to counsel.

In respect of the Vincent statement, it was held that Vincent’s right to counsel accrued upon him being psychologically detained. According to Romilly J, the power imbalance between the police officer who took the statement and the “unsophisticated, short, slightly built 19 year old…was huge”. Moreover, even when the police officer did advise Vincent of his rights, it was done with an “almost indecent hast” and without Vincent being given any time to consider whether he wished to contact counsel. There had been no valid waiver, and therefore Vincent’s statement was obtained in breach of the Charter. Consequently, it was necessary for the Court to consider whether the evidence should be excluded under s 24(2).

On this issue, the Court reaffirmed the approach taken in Grant v Harrison 2009 SCC 34, which involves three lines of inquiry into: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the Charter violation on the Charter-protected interests of the accused; and (iii) society’s interest in an adjudication on the merits. In balancing these three lines of inquiry, the Court determined that admitting the illegally obtained evidence would bring the administration of justice into disrepute. Vincent’s statement was thus excluded.

Relevance to Victorian Charter

This case raises important questions concerning the need to preserve the rights of the detained individual while maintaining the integrity of the administration of justice. The public must have confidence that vulnerable citizens are being advised of their rights by state authorities. To admit evidence where proper cautions have not been given would be to undermine the public’s confidence in state authorities and the legal system in the long term.

Application for exclusion of impugned evidence can be made under current law, and unlawfulness arising from breach of the Victorian Charter may be used as a ground in the cause of action.

The Victorian Charter guarantees some protections for accused persons. The minimum rights guaranteed in circumstances of detention and arrest are dealt with separately in ss 21 and 25 respectively. Relevantly, a person charged with a criminal offence is entitled to have adequate time to prepare his or her defence and to communicate with a lawyer or adviser chosen by him or her. If the accused is unrepresented, he or she has the right to be told of the right, if eligible, to legal aid under the Legal Aid Act 1978 (Vic). A detained person does not have the right to retain counsel immediately. The Victorian Charter would arguably be strengthened by the inclusion of the right upon detention to retain and instruct counsel with delay and, importantly, the right to be clearly informed of this right.

This decision can be found online at: http://canlii.ca/en/bc/bcsc/doc/2011/2011bcsc1443/2011bcsc1443.html

Isabel Waters is a lawyer with the Mallesons Stephen Jaques Human Rights Law Group

V.K. v. Bulgaria, UN Doc CEDAW/C/49/D/20/2008 (17 August 2011)

Summary

The Committee on the Elimination of Discrimination against Women has found that Bulgaria’s failure to protect V.K. effectively against domestic violence amounted to violations of articles 2(c)-2(f) of the Convention on the Elimination of All Forms of Discrimination against Women, read in conjunction with article 1, and article 5(a), read in conjunction with article 16(1) and General Recommendation No 19 on violence.

Facts

V.K. claimed that her husband, F.K., subjected her to domestic violence, initially psychological, emotional and economic abuse and later physical violence. Following continued abuse, V.K. filed an application for protective measures and financial maintenance with the Warsaw District Court but the proceedings remained unresolved. During this time, the abuse continued and included an attempt to strangle V.K. F.K. subsequently initiated divorce proceedings against his wife and claimed custody of both their children. Police were called on multiple occasions in response to F.K.’s abusive behaviour. V.K. succeeded in obtaining an order for immediate protection under the Bulgarian Law on Protection against Domestic Violence. However, domestic courts refused to grant V.K. a permanent protection order on the basis that there was no imminent threat to the life or health of V.K. and her children because they had not been subjected to domestic violence in the month prior to applying for the order.

Following unsuccessful attempts to obtain redress at the domestic level, V.K. submitted a communication to the Committee in which she alleged violations of articles 2 (state obligations), 5 (wrongful gender stereotyping) and 16 (equality in marriage and family relations) of CEDAW, read in conjunction with article 1 (definition of discrimination).

Decision

Freedom from gender-based violence against women

In its views, the Committee reiterated that gender-based violence is a form of discrimination against women that States Parties to CEDAW are required to address. It further reiterated that States Parties have a due diligence obligation to prevent, investigate, punish and remedy acts of violence committed by private actors.

The Committee noted that Bulgaria had adopted the Law on Protection against Domestic Violence, but had failed to implement it in practice so as to afford V.K. and other women effective protection against domestic violence. In condemning this failure, the Committee explained that “the political will that is expressed in such specific legislation must be supported by all State actors, including the courts, who are bound by the obligations of the State party.”

The Bulgarian courts’ refusal to issue a permanent protection order against V.K.’s husband was central to the Committee’s finding that the State Party had violated article 2 of CEDAW. According to the Committee, the refusal was based on the assumption that there was no imminent threat to the life or health of V.K. and her children because they had not been subjected to domestic violence in the month prior to applying for the order. The Committee noted, however, that CEDAW “does not require a direct and immediate threat to the life or health of the victim. Such violence is not limited to acts that inflict physical harm, but also covers acts that inflict mental or sexual harm or suffering, threats of any such acts, coercion and other deprivations of liberty.” The Committee noted further that, while applications under the Law on Protection against Domestic Violence for an immediate protection order require “a direct, immediate or impending threat to the life or health of the aggrieved person”, no such threat is required to issue a permanent protection order. According to the Committee, Bulgaria’s courts had “applied an overly restrictive definition of domestic violence that was not warranted by the Law and was inconsistent with the obligations of the State party under article 2 (c) and 2 (d) [of] the Convention….”  The Committee explained that

both courts focused exclusively on the issue of direct and immediate threat to the life or health of the author and on her physical integrity while neglecting her emotional and psychological suffering. Moreover, both courts unnecessarily deprived themselves of an opportunity to take cognizance of the past history of domestic violence….The courts also applied a very high standard of proof by requiring that the act of domestic violence must be proven beyond reasonable doubt, thereby placing the burden of proof entirely on the author, and concluded that no specific act of domestic violence had been made out on the basis of the collected evidence. The Committee observes that such a standard of proof is excessively high and not in line with the Convention, nor with current anti-discrimination standards which ease the burden of proof of the victim in civil proceedings relating to domestic violence complaints.

The Committee also concluded that the unavailability of domestic violence shelters in Bulgaria amount to a violation of articles 2(c) and 2(e) of CEDAW.

Freedom from wrongful gender stereotyping

In its views, the Committee reiterated the links between wrongful gender stereotyping and the freedom from gender-based violence against women as well as the right to a fair trial. Affirming its findings in Karen Tayag Vertido v The Philippines, the Committee noted that States Parties can be held accountable under CEDAW for judicial decisions that are based on gender stereotypes, rather than law and fact. “Stereotyping,” the Committee said, “affects women’s right to a fair trial and the judiciary must be careful not to create inflexible standards based on preconceived notions of what constitutes domestic or gender-based violence.”

Considering the facts, the Committee found that the refusal to grant a permanent protection order was based on gender stereotypes related to domestic violence. It found further that the divorce proceedings had been influenced by gender stereotypes related to the roles and behaviour expected of men and women within marriage and family relations. According to the Committee, reliance on these gender stereotypes amounted to discrimination and also resulted in the re-victimization of V.K, in violation of articles 2(d) and 2(f) of CEDAW as well as article 5(a), read in conjunction with article 16(1) and the Committee’s General Recommendation No 19 on violence against women.

Relevance to the Victorian Charter

In Australia, one in three women over the age of 15 years has experienced gender-based violence in their lifetime. Over 40 per cent of these women, around 1.2 million women, have experienced that violence at the hands of a current or former partner. Whilst domestic violence cannot be eliminated through law alone, it is an essential component of any response to this human rights violation.

The Victorian Charter provides a key tool in the struggle against gender-based violence, even though it does not include express protections against this human rights abuse. Several of its rights are relevant to domestic violence, including rights to non-discrimination and equality (s 8), the right to life (s 9), and the freedom from torture and cruel, inhuman or degrading treatment (s10). It is important that these rights are interpreted in a way that provides women with meaningful protection against gender-based violence.

The decision is available at: http://www2.ohchr.org/english/law/docs/CEDAW-C-49-D-20-2008.pdf

Simone Cusack is Senior Policy & Research Officer in the Australian Human Rights Commission’s Sex and Age Discrimination Unit

Mandic and Jovic v Slovenia [2011] ECHR Application Nos. 5774/10 and 5985/10 (20 October 2011)

Summary

In this case, the European Court of Human Rights confirmed that inadequate physical conditions of detention in prison, in particular insufficient personal space for prisoners resulting from systemic overcrowding, can amount to inhuman and degrading treatment in breach of article 3 of the European Convention of Human Rights. If a prison does not meet certain minimum standards, the threshold of severity necessary to amount to a breach of article 3 may be crossed even in the absence of a positive intention to humiliate or debase prisoners.

Facts

Mr Mandic, a Slovenian national, and Mr Jovic, a Serbian national (the applicants), were detained in the remand section of Ljubljana Prison in Slovenia for approximately seven months in 2009-2010 pending trial. They occupied a cell measuring 16.28 square metres together with four other inmates. The cell had no artificial ventilation, though it did have four windows which the prisoners were free to open and close. The average daily temperature in the second half of July and August of 2009 was approximately 28 degrees celcius.

The cell was equipped with a sanitary annex, separated by floor-to-ceiling walls and a door with a functioning artificial ventilation system. Partitioned showers were available for daily use on the same floor as the cell.

The cells were locked throughout the day in both the remand and the closed section of the prison and the applicants were only able to leave their cell for scheduled activities (such as visits or exercising) for an average of 2.5 hours per day. They were able to use the outside yard, which was on average used by no less than 30 prisoners at a time, for two hours a day and also had access to a recreation room for a couple of hours a week.

The occupancy of the Ljubljana Prison twice exceeded its official capacity of 128 prisoners during the period of the applicants’ detention, with 261 and 245 prisoners held in 2009 and 2010 respectively. The effects of overcrowding at this prison on inmates, particularly in summer, had previously given rise to the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommending that efforts be made to reduce cell occupancy to a maximum of four prisoners per 18 square metre cell and subsequently criticising the lack of progress on this front. The Slovenian Human Rights Ombudsman had also expressed concern about the overcrowding and noted in a 2007 report that “the living conditions, as observed by us during the summer, were inhuman”.

The applicants complained that the conditions of their detention amounted to a violation of articles 3 and 8, and that they had no effective remedy for these violations as required by article 13. In particular, they complained of severe overcrowding, inadequate ventilation, poor sanitary conditions, excessive restrictions on out-of-cell time, high temperatures in the cell, inadequate health care and psychological assistance and exposure to violence from other inmates due to insufficient security.

Decision

Article 3

The Court noted that “severe lack of space in a prison cell” was a significant factor in determining whether detention conditions were degrading within the meaning of article 3. It observed that the applicants had been held in a cell for several months in which the personal space available to each of them was 2.7 square metres (and even less when furniture was taken into account), holding that “this state of affairs in itself raised an issue under Article 3”.

The Court considered that the applicants’ situation was exacerbated by confinement to their cell day and night, save for two hours of daily exercise in the outside yard and an additional two hours per week in the recreation room. The Court took further note of the applicants’ complaints regarding the high temperatures in the cells, as substantiated by reports by the Slovenian Human Rights Ombudsman. The Court accepted that the sanitary conditions may have been affected by the fact that the facilities were overcrowded, but did not find on the basis of the material before it that the cleanliness of the relevant areas of the prison was inadequate.

Significantly, in the absence of any indication that there was a positive intention to humiliate or debase the applicants, the Court ultimately concluded that:

…having regard to the fact that for the most part of their detention they had less than 3 square metres of personal space inside their cell for almost the entire day and night, the Court considers that the distress and hardship endured by the applicants exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3 and therefore amounted to degrading treatment.

This followed from the principle articulated at paragraph [72] of the judgment that:

…although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3.

Article 8

The applicants relied on restrictions on visits and telephone calls to support a claim that there was a violation of the right to private life protected by Article 8. The Court rejected this claim as manifestly ill-founded as these restrictions were provided for in the relevant legislation, and were not unreasonable restrictions to “uphold the prison regime”. Furthermore, there was no evidence or concrete information submitted to indicate the applicants were unable to use the facilities in accordance with the law.

Article 13

The applicants complained that, owing to the systemic nature of the inadequate prison conditions, they did not have any effective remedy at their disposal as regards their complaints under articles 3 and 8.

The Slovenian Government asserted that there were several remedies to which the applicants could have resorted. The Court found that none of these could be regarded as constituting an effective remedy. The transfer of a remand prisoner to another prison or the transfer of a convicted prisoner under criminal legislation, for example, were inadequate because they could only have been requested by the prison governor.  Moreover, the authorities were aware of the overcrowding and presumably would have ordered the applicants’ transfer if it was possible to do so. The Court also found that the other remedies proposed by the Government – namely, the institution of civil proceedings to obtain compensation, a petition to the Human Rights Ombudsman or an appeal to the Constitutional Court – were not sufficiently certain remedies in respect of inadequate prison conditions to be considered effective remedies.

Relief

Slovenia was ordered to pay the applicants 8,000 euros each in respect of non-pecuniary damage and 2,000 euros jointly in respect of costs and expenses. Further, the Court underlined the need for the Slovenian government to take steps to reduce the number of prisoners in the prison in order to prevent future violations of article 3 even though it could not conclude there was a structural problem consisting of a practice incompatible with the Convention nationwide in Slovenia.

Relevance to the Victorian Charter

Section 10 of the Charter provides protection from torture and cruel, inhuman or degrading treatment on similar terms to article 3 of the Convention. Furthermore, s 22(1) of the Charter provides that “all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person”. This decision may usefully inform the interpretation of these provisions of the Charter. The reiteration in this case that the State has positive obligations to ensure that certain minimum standards are met in detention facilities is significant in light of public authorities being caught under the Charter. This is particularly interesting in the context of the partial privatisation of the prison system in Victoria.

Rebecca James is a lawyer and Pro Bono Coordinator with Allens Arthur Robinson

Gale & Anor v Serious Organised Crime Agency [2011] UKSC 49 (26 October 2011)

Summary

Approximately £2 million worth of property was confiscated from the appellants, on the basis that it was the fruit of drug trafficking, money laundering and tax evasion.

Under Article 6(2) of the European Convention on Human Rights, the United Kingdom Supreme Court held that the appellants’ criminal conduct was to be proved on the balance of probabilities, and not beyond reasonable doubt. It was held that the proceedings were civil in nature and did not share a procedural link with previous criminal proceedings brought against one of the appellants in Portugal and Spain.

Facts

The Proceeds of Crime Act 2002 (UK) provides for confiscation of assets if the court is satisfied on the balance of probabilities (the civil standard of proof) that the assets were obtained by unlawful conduct.

At first instance, the British Serious Organised Crime Agency (“SOCA”) obtained an order against the appellants for confiscation of property to the value of £2 million. SOCA satisfied the primary judge that the property was the proceeds of drug trafficking, money laundering and tax evasion in various countries.

On appeal to the Supreme Court of the United Kingdom, the appellants relied on the fact that David Gale had been acquitted of drug trafficking in Portugal, and criminal proceedings against him had been discontinued in Spain. They argued that unlawful conduct had to be proved beyond reasonable doubt (the criminal standard of proof), otherwise the proceedings violated article 6(2) of the European Convention on Human Rights. Article 6(2) provides: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Decision

The Supreme Court unanimously dismissed the appeal.

Lord Phillips examined previous decisions of the European Court of Human Rights on article 6(2). Although his Lordship found it difficult to identify a unifying principle underlying the cases, he concluded firstly that the existence of a “procedural connection” between the previous criminal trial and the subsequent civil proceedings was relevant. If such a connection existed, the criminal conduct would have to be proved beyond reasonable doubt for the civil claim to succeed. His Lordship held that there was no procedural link between the Portuguese trial and the current proceedings. Further, the British court was permitted to consider evidence that formed the basis of the Portuguese charges.

An alternative route to violation of article 6(2) was if public authorities (for instance, the court) suggested that an acquitted defendant might nonetheless have been guilty. His Lordship could identify no such suggestion on the facts.

The other justices broadly agreed with Lord Phillips. In concluding that no procedural link existed, Lord Dyson remarked that the Act provides for free-standing proceedings that can be brought whether or not there has been a criminal trial.

Relevance to the Victorian Charter

Section 25(1) of the Victorian Charter contains similar wording to article 6(2): “A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.”

In Momcilovic v The Queen (2011) 280 ALR 221; [2011] HCA 34, at paragraph 52 French CJ tentatively indicated that s 25(1) may extend to “prejudicial pre-trial statements and proceedings for the award of costs or compensation for detention on remand following discontinuance of criminal proceedings or acquittal”. However, this comment was in passing, as Momcilovic concerned the principle that the prosecution bears the burden of proof in criminal proceedings.

The principles discussed in Gale appear relevant to various types of civil claims, such as a compensation claim by the defendant for being remanded in custody; disciplinary proceedings against the defendant by a professional body or employer; and damages claims by victims.

However, the utility of the case itself may be limited. The justices found the prior ECHR cases confusing and difficult to interpret. Much ambiguity surrounds the requirement of “procedural connection”, and the efforts of Lord Phillips in particular to flesh out a unifying principle were limited by the facts in issue. If there ever was a case where two proceedings lacked a procedural connection, this was it – the previous criminal trial and subsequent civil proceedings took place in different jurisdictions. Accordingly, the justices rightly suggested that it would be desirable for the Grand Chamber of the ECHR to clarify and rationalise “this whole confusing area”.

The decision can be found online at: www.bailii.org/uk/cases/UKSC/2011/49.html

Sylvester Urban is a lawyer with the Mallesons Stephen Jaques Human Rights Law Group

Sessay, R (on the application of) v South London & Maudsley NHS Foundation Trust & Anor [2011] EWHC 2617 (QB) (13 October 2011)

Summary

The High Court of England and Wales considered the circumstances in which the compulsory admission to hospital of non-compliant incapacitated patients under the Mental Health Act 1983 (MHA) may constitute a deprivation of liberty in contravention of article 5 the European Convention of Human Rights (ECHR).

The Court found that the procedures provided for detention by the MHA to be comprehensive. It held that Ms Sessay’s detention for 13 hours in contravention of the procedure provided by the MHA constituted a deprivation of liberty in contravention of article 5 of the ECHR.

Facts

The claimant, Sawida Sessay, was taken by police officers to the Maudsley Hospital and detained for 13 hours pending the making of an application to admit her compulsorily under s 2 of the Act. Section 2 of the MHA provides for the compulsory admission and detention of a patient to hospital for assessment (or assessment followed by treatment) for up to 28 days.

The police officers entered the claimant’s home following receipt of a complaint that Ms Sessay had not been caring properly for her child. They formed the view that the claimant was mentally disordered, were concerned for her welfare and that of her child and considered it was in Ms Sessay’s best interests that she be taken to hospital to be assessed.

The officers considered that Ms Sessay could be detained under s 135 of the MHA, which provides for the detention in a place of safety for up to 72 hours of a person believed to be suffering from a mental disorder but unable to care for themselves. However, they were unable to exercise that power due to the lack or a warrant and the absence of approved practitioners. They therefore relied on s 5 of the Mental Capacity Act 2005 (MCA), which provides power to, and procedures for, detaining a patient for up to six hours pending the making of an application under s 2 of the MHA where there is a risk that they will leave the hospital before the application is completed.

However, Ms Sessay was detained for 13 hours before the application for her admission under s 2 of the MHA was completed. She claimed that her treatment amounted to unlawful detention and/or deprivation of liberty in breach of article 5 of the ECHR. She further sought a declaration that the general practice and policy of the South London & Maudsley NHS Foundation Trust of holding persons awaiting assessment for admission for up to eight hours is unlawful.

Decision

The Court held that the MHA provides comprehensively for the compulsory admission to hospital of non-compliant incapacitated patients, that the common law principle of necessity does not apply in this context and that the claimant’s detention was consequently unlawful. It found that this unlawful detention constituted a breach of her rights under article 5 of the EHCR. However, the Court did not consider that the Trust’s policy of holding persons for up to 8 hours to be unlawful.

Was the detention unlawful?

The Court did not accept the submission that a lacuna existed in the MHA which could only be filled by the common law doctrine of necessity. It considered that the MHA provides comprehensively for such admission for the following reasons:

• the MHA provides a procedure for compulsory hospital admissions;
• Parliament has expressly provided for the situation where the application is one of urgent necessity;
• the Code of Practice provides guidance in relation to emergency applications;
• the Trust has provided its own policy regarding potential time delays;
• where a patient evidences an intention to leave before an application for admission is completed, hospital staff may contact the police who have the power to detain under s 136 of the MHA; and
• the House of Lords has held that the statutory powers of detention conferred on hospital authorities are exhaustive and that any common law power of detention which the authority might otherwise have possessed have been impliedly removed.

The Court noted that the European Court of Human Rights has held that a claimant was deprived of his liberty in breach of article 5(4) of the ECHR in circumstances in which the doctor had used the common law doctrine of necessity rather than statutory powers to detain, which did not meet the requirement in article 5(1)(e) that detention be carried out in accordance with the procedure prescribed by law.

Did the unlawful detention constitute a deprivation of liberty in breach of article 5?

The Court observed that, in considering the operation of article 5 of the ECHR, the starting point must be the specific situation of the claimant and account must be taken of a wide range of factors. These include the type, duration, effects and manner of implementation of the deprivation of liberty.

It considered the principles relating to lawfulness and protection against arbitrary detention, noting:

• lawfulness requires conformity with procedural and substantive aspects of domestic law;
• the relevant law must meet the standard of lawfulness set by the Convention which requires that the law be sufficiently precise to allow the citizen to foresee to a reasonable degree the consequences which may follow a particular action; and
• it must be established that the detention conformed with the essential objective of article 5(1), being to prevent the arbitrary deprivation of liberty.

The Court further observed that authorities suggest that a deprivation of liberty, to breach article 5, must be for more than a negligible length of time and that there is room for a pragmatic approach to be taken which takes full account of the circumstances.

The Court found that the claimant was detained under s 5 of the MCA, which does not confer on police officers the powers to remove persons to hospital which are provided by ss 135 and 136 of the MHA, and that the defendant failed to establish lawful justification for the detention.

Although the Court considered that a detention at common law will not necessarily constitute a deprivation of liberty for the purposes of article 5, it found that it did so in this case. The Court held that no justification for the deprivation of liberty was provided by the fact that Hospital staff considered that power existed to detain Ms Sessay under s 136 of the MHA (although this power was not exercised), and that some of the delays in processing her application for admission had not been adequately explained.

The Court finally found that, although a deprivation of liberty occurred in respect of Ms Sessay’s detention, the Trust’s policy that persons be held for up to eight hours is not unlawful, and that there was no evidence that the hospital was unable to process applications in a timely manner when the case is one of urgent necessity. This finding of the Court suggests the adoption of a pragmatic approach, in circumstances where the statutory procedures provide for a maximum six hour detention.

Relevance to the Victorian Charter

The right to liberty and security of the person is protected by the Victorian Charter of Human Rights and Responsibilities. Section 21 relevantly provides:

• Every person has the right to liberty and security.
• A person must not be subject to arbitrary arrest or detention.
• A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

Section 21(7) further provides that any person deprived of liberty is entitled to apply for a declaration or order regarding the lawfulness of his or her arrest or detention.

The consideration by the High Court of Ms Sessay’s detention provides useful guidance in respect of the approach which may be taken by Victorian courts to the application of s 21 of the Charter. It suggests that, where statutory procedures for lawful detention are comprehensively provided, courts may be willing to take a pragmatic approach, but reluctant to consider any significant departure from such procedures to be lawful.

The decision can be found online at http://www.bailii.org/ew/cases/EWHC/QB/2011/2617.html.

Catie Shavin is a lawyer at Allens Arthur Robinson.

S.H. & Others v Austria [2011] ECHR 1879 (3 November 2011)

Summary

The Grand Chamber of the European Court of Human Rights has found that Austrian legislation which prevents couples from conceiving a child with in vitro fertilization using donated ova or sperm does not breach the European Convention on Human Rights.

This decision reverses an earlier finding that Austria’s Artificial Procreation Act breached the applicants’ rights to private and family life (article 8) and non- discrimination (article 14) under the Convention.

The decision focuses on state parties’ discretion when it comes to balance competing rights and interests, referred to as the “margin of appreciation”. Taking into account all the circumstances, the Court granted Austria a wide margin of appreciation in this instance.

Facts

The applicants were two married, heterosexual couples who, for biological reasons, were unable to conceive naturally. Both couples required access to IVF treatment. Additionally, the first and second applicants needed access to donated sperm, while the second and third applicants needed donated ova. Both couples were prohibited by the Act from accessing the particular treatment they sought.

Relevantly, there is no universal agreement among member states about where to draw the line in this complex and sensitive area of the law. Regulation of reproductive treatments varies from country to country. In Austria, sperm donation is permitted for the purposes of artificial insemination only, but not IVF. Many other European countries that allow sperm donation do not distinguish between its use in artificial insemination and IVF treatment. Italy, Lithuania and Turkey prohibit sperm donation altogether. Croatia, Germany, Norway and Switzerland, meanwhile, permit sperm donation but prohibit ova donation.

Germany and Italy intervened in these proceedings in support of Austria’s position.

Discussion

The applicants claimed that Austria’s restrictions on IVF interfered with their rights to procreate and found a family without discrimination.

The applicants also argued that decisions about reproduction “concerned the most intimate sphere of their private life and therefore the legislature should show particular restraint in regulating these matters”. They submitted, therefore, that Austria’s “margin of appreciation” should be narrowly conceived.

The Austrian government conceded that article 8 of the Convention was relevant in the circumstances in the case. In other words, it agreed that “the private life aspect within the meaning of Article 8.1 of the Convention also covered the desire of couples or life companions to have children as on of the essential forms of expression of their personality as human beings”.

While acknowledging that the Act limited the applicant’s rights, Austria submitted that the limitation was lawful, legitimate and necessary, bearing in mind the competing rights and interests at stake and the particular sensitivities surrounding reproductive treatments.

Specifically, Austria raised concerns about expanding access to IVF on the bases that:

• egg donation might lead to the “exploitation and humiliation” of women, particularly economically disadvantaged women by creating a marketplace for ova;
• it wanted to avoid circumstances where a child could claim to have two biological mothers (the egg donor and the woman who carried the embryo), and
• broadening access to IVF may open the gateway to lead to selective reproduction and raised “essential questions regarding the health of children…general ethics and moral values of society”.

The applicants also argued that many of these concerns relied on by Austria could be overcome by enacting supplementary legislation, such as laws prohibiting the buying or selling of ova (which already exist in Austria) and laws clarifying maternity. Further, the applicants said the Act was “illogical and inconsistent” because it permitted IVF and the use of sperm donors, but prohibited medical treatment which involved combining the two.

Decision

The decision focuses on the issue of Austria’s margin of appreciation. In other words, was the limitation on the applicant’s human rights a legitimate exercise of Austria’s discretion to balance competing rights and interests? The majority said the key issue was whether “in striking the balance at the point at which it did, the Austrian legislature exceeded the margin of appreciation afforded to it under the Article,” and not whether Austria might have reached a different (arguably fairer) solution.

On the one hand, the majority said that where a particularly important aspect of an individual’s existence or identity is at stake – as in this case – the margin allowed to the country will normally be restricted.

On the other hand, the majority said where there is no consensus among member states of the Council of Europe about the relative importance of the interests at stake, or the best means of protecting those interests, the margin afforded to each country will be wider, particularly if the case raises sensitive moral or ethical issues. Although the majority referred to an “emerging consensus” among European countries in favour of IVF using donated sperm or ova, it found that it did not significantly narrow Austria’s discretion, as the “emerging consensus” was not yet based on settled or long-standing principles.

Ultimately, the Court accepted that Austria’s conduct did not exceed its margin of appreciation, bearing in mind that the complexities and sensitivities of the issues. Therefore, the Court held that Austria had not breached the Convention.

In concluding, the majority noted the rapid change and dynamism in this area of the law, which leaves the door open to the potential for a different decision in the future.

The case can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/1878.html

Emma Purdue is on secondment to the Human Rights Law Centre from Lander & Rogers

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Retrospective Deterring People Smuggling Act violates human rights and the rule of law

The Deterring People Smuggling Act 2011 was passed on 25 November 2011.

The Act amends the people smuggling offences in the Migration Act 1958. People smuggling offences are established inter alia where a person brings people to Australia who have no lawful right to come. The Act retrospectively defines “no lawful right to come to Australia” to mean no lawful right under domestic law. This is notwithstanding that a person may have a clear and lawful right under international law to come to Australia.

In essence, the Act toughens an already draconian regime which threatens to see hundreds of impoverished Indonesian fishermen and boys jailed for a minimum of 3 years. This regime violates human rights, threatens the rule of law, costs taxpayers tens of millions of dollars in legal fees and detention costs and is likely to have no impact on people smuggling.

The HRLC’s Submission to the Senate Legal and Constitutional Affairs Committee focused on the human rights implications of the Act, identifying the following concerns:

• the Act contravenes the prohibition on retrospective criminal laws contained in article 15 of the International Covenant on Civil and Political and Political Rights, Australian common law and Government guidelines;
• the mandatory sentence of 5 years with a 3 year non-parole period that flows from the offence of aggravated people smuggling contravenes the prohibition on arbitrary detention (article 9 of the ICCPR) and the right to a fair trial (article 14 of the ICCPR); and
• the Act violates Australia’s obligation to act in ‘good faith’ by seeking to indirectly avoid its obligations under the Convention Relating to the Status of Refugees.

The Senate Committee acknowledged these concerns, citing the HRLC submission and oral evidence extensively, but nevertheless recommended that the Act be passed. The Committee did, however, recommend that the Government review the operation of the people smuggling offences in the Migration Act 1958 to ensure that these offences continue to effectively deter people smuggling.

The Human Rights Law Centre has made a submission to the Productivity Commission calling for reform of Australia’s Export Finance and Insurance Corporation (EFIC) to better promote and protect human rights.

EFIC is the Australian Government provider of export credits, insurance, reinsurance, and other financial services that support Australian exports and overseas investments.

Like most export credit agencies globally, EFIC assists exporters and private providers of insurance and finance products in circumstances where the private sector is unwilling or unable to provide support.

The role of ECAs has expanded considerably due to globalisation and the exponential growth of global markets. In particular, ECAs play a significant role as providers of finance in the developing world. ECAs may offer loans to developing countries on the condition that they buy the exports of the lending country, or they may provide guarantees or insurance for the loans made by commercial banks or exporters to developing countries.

Given the importance of ECAs in the global economy and their role in supporting corporate activity in developing countries, ECAs are in a unique position to promote human rights compliance in projects seeking ECA support. However, EFIC and other ECAs have a poor history of incorporating human rights compliance mechanisms into their operations. As a result, EFIC and other ECAs have facilitated corporate activity that has been associated with significant adverse human rights impacts.

For example, ECA-backed projects have been associated with forced displacement of local populations, poor conditions of work, suppression of peaceful protests and the rights to freedom of expression and association, exposure to environmental contaminants and the destruction of cultural sites.

The HRLC submission considers EFIC’s international human rights obligations and concludes that EFIC’s current policies and operations do not comply with its obligation to protect human rights as established under the framework set out by the UN Special Representative on Business and Human Rights, Professor John Ruggie.

The HRLC recommends that EFIC’s policies should:

• require that EFIC undertake adequate human rights due diligence;
• require due diligence by EFIC’s client companies; and
• state that EFIC will not support activities that are likely to cause or contribute to human rights abuses.

The implementation of these policies, in conjunction with appropriate transparency requirements and grievance mechanisms, would be a significant step towards the implementation of EFIC’s international human rights obligations.

The HRLC is part of a legal team led by Ron Merkel QC taking action on behalf of the Occupy Melbourne protesters in a landmark case on the right to free expression and peaceful protest. The right to protest is a fundamental right under the Australian Constitution and also afforded protection under the Victorian Charter of Rights and Responsibilities. The case focuses on protesters’ rights, but has broad ramifications for representative democracy and the right of all Australians to gather in groups, to express their views and to participate in the democratic process.

The decisions and actions taken by Melbourne Lord Mayor Robert Doyle and Victoria Police to forcibly evict peaceful demonstrators from City Square raise serious questions about the infringement of fundamental civil and political rights and use of force by Victoria Police. However, the focus of this case, which has been commenced in the Federal Court, is preserving the ability of the Occupy Melbourne demonstrators to continue to exercise their right to protest by maintaining a peaceful presence in public parks in Melbourne.

Since their forcible eviction from City Square on 21 October, Occupy Melbourne has moved to other public parks in the City of Melbourne to continue their protest. While we have not seen the same display of force and violence by the authorities that occurred on 21 October, the Council and Victoria Police have maintained a regular presence at the protest site, issuing numerous ‘Notices to Comply’ to protesters in relation to their possessions (everything from cardboard boxes, cooking utensils and cardboard signs to folding tables and marquees), confiscating the property of protesters and, on a number of occasions, arresting protesters on the grounds that they were obstructing council workers carrying out their duties under the Local Law. The Council is relying on provisions of the Activities Local Law 2009 which prohibit advertising signs or camping without a permit granted by the Council.

The Federal Court proceeding challenges the enforcement action taken by the Council and Victoria Police against the protesters on a number of bases, including that such action is in breach of the implied freedoms of political communication and association contained in the Australian Constitution and the right to peaceful assembly and freedom of expression under the Victorian Charter. Significantly, as public authorities under the Charter, the Council and Victoria Police have a legal responsibility to act compatibly and give proper consideration to human rights. International human rights law is clear that there should not be any limitations on these rights unless those limitations are reasonable, proportionate and necessary. The onus will be on the Council and Victoria Police to demonstrate that their actions were proportionate in the circumstances. The Court will also be asked to consider whether certain provisions of the Local Law are invalid to the extent that they operate in a way which is an impermissible burden upon or incompatible with these rights.

This is not an isolated incident. Occupy protesters are being arrested and ‘moved on’ from public spaces across the world. The legal team here is seeking to protect the rights to free expression and assembly for the protesters in Melbourne. Members of the Occupy movement and human rights supporter across the globe will be watching this case closely as it will serve as an international precedent for similar actions in foreign jurisdictions.

The Human Rights Law Centre is working with Fitzroy Legal Service on this matter and is assisted by the pro bono support of Allens Arthur Robinson together with Ron Merkel QC, Mark Moshinsky SC, Nick Wood and Emrys Nekvapil of Counsel.

If any lawyers or law students wish to volunteer to assist the Occupy Melbourne Legal Support team, a group of volunteer lawyers assisting the protesters with a range of legal issues, please contact occupymelbournelegal@gmail.com.

The UN Special Rapporteur on Trafficking in Persons, especially in women and children undertook a country mission to Australia in November.

In preparation for that mission, and at the request of the UN Office of the High Commissioner for Human Rights, the Human Rights Law Centre and Anti-Slavery Australia prepared a major Briefing Paper to the Special Rapporteur. Mallesons Stephen Jaques provided substantial pro bono research assistance in preparing the paper.

The Briefing Paper provides an overview of trafficking in persons in Australia, including:

• the main forms and manifestations of human trafficking;
• existing or planned laws, policies and plans of action to address trafficking in persons;
• existing or planned bilateral or multilateral agreements to address trafficking;
• support services for victims of trafficking; and
• priorities for reform.

In the view of both the HRLC and Anti-Slavery Australia, the most effective way to address human trafficking and severe exploitation is to “incorporate a human-rights based approach into measures taken to prevent and end trafficking in persons and to protect, assist and provide access to adequate redress to victims, including the possibility of obtaining compensation from the perpetrators”.

The HRLC – together with leading human rights organisation Human Rights Watch – has lobbied the Australian government to take a leadership role in promoting and protecting human rights in the Indonesian province of Papua.

“Australia must unequivocally support the human rights of all persons to freedom of expression, association and assembly,” said Tom Clarke from the Human Rights Law Centre. “It is not in Australia’s strategic interest to have a festering human rights problem on our doorstep.”

1 December 2011 marked the 50-year anniversary of the first raising of the “Morning Star” flag, a symbol of the independence movement in Papua.

In the lead-up to the anniversary, the HRLC and Human Rights Watch sent a joint letter to Foreign Minister Kevin Rudd. The letter called on the Australian Government to:

• urge the Indonesian Government to ensure full and free media access to Papua and deploy Australian embassy staff to monitor and observe independence day events;
• reiterate Australia’s unequivocal support for the rights to freedom of expression, assembly and association, in accordance with the International Covenant on Civil and Political Rights;
• call for an immediate, full and impartial investigation into the deaths and injuries, and allegations of excessive use of force by the authorities at the Third Papuan People’s Congress on 19 October 2011; and
• urge Indonesia to release all political prisoners detained in Papua, including Filep Karma who Amnesty International reports was imprisoned for his part in a flag raising ceremony.

The letter generated media coverage and The Australian published an HRLC opinion piece calling on Kevin Rudd and the Australian Government to take a principled and public stand for basic human and democratic rights in our region. The Government has not yet responded to the letter.

“The default policy of successive Australian Governments has seemingly been to politely look the other way while human rights abuses occurred on our doorstep. This approach desperately needs rethinking. The problem of violence and repression in West Papua needs to be acknowledged and addressed,” Mr Clarke said.

On 23 November 2011, the Coroner handed down her findings in the inquest into the 2008 Police shooting death of 15-year-old Tyler Cassidy. The findings highlight the urgent need for better training and investigation of police use of force, and reflect a number of submissions made by the HRLC.

The HRLC intervened to provide the Coroner with assistance on the relevance of the Victorian Charter and made discrete submissions on the human rights issues raised in the proceedings. The HRLC was assisted on a pro bono basis by Allens Arthur Robinson, together with Brian Walters SC and Sam Ure of Counsel.

The findings canvassed many factual and legal issues relevant to the circumstances of Tyler’s death. Significantly, the Coroner found that the police members acted within the “limits of their training” and that due to Tyler’s mental state a finding of suicide was not able to be made. The Coroner made a total of eight recommendations, many of which dealt with the issues raised by HLRC.

It was pleasing to see a number of HRLC submissions related to training reflected in the Coroner’s recommendations. Specifically, recommendations for specific training to equip members to safely and effectively manage vulnerable youth and, similarly, to safely manage people in crisis or possibly intent on bringing about their own deaths at the hands of police. A further recommendation was made to reintroduce some form of assessment following training. Over-reliance on weapons to resolve incidents was another issue raised in HRLC’s submissions which was reflected in a recommendation that Victoria Police develop a structure to ensure adherence to the 10 operational safety principles in order to prevent over-reliance on operational equipment.

Also welcome was the Coroner’s recommendation that Victoria Police arrange for a suitable welfare person to attend and assist the family at the scene and thereafter.  This reflected a HRLC submission that policies and procedures be developed and implemented to ensure that next-of-kin are dealt with in a sensitive and appropriate manner.

The findings also highlighted the inadequacy of Victoria’s systems for the investigation of police related deaths, which currently involve police investigating police. The Coroner recognised that concerns of perception and bias arise when police are interviewed by their fellow officers following an incident and recommended that an “institutionally independent legally trained person” be available to observe the interviewing of police officers implicated in deaths. However, this recommendation was only a first step to addressing the structural problems presented by the current model of investigation, and an imperfect step at that. Ensuring that interviews are video or audio recorded within 24 hours of the incident would more adequately allay perceptions regarding collusion and bias.

The HRLC’s submissions advocated for the establishment of a body hierarchically, practically and institutionally independent of the Victoria Police to conduct primary investigations into deaths associated with police conduct. Such reforms would reduce the risk of collusion or corruption and increase public trust and confidence in police processes. While the Coroner appeared to accept that there were a number of deficiencies in the investigation into Tyler’s death and, in some cases, made recommendations as to rectifying procedures for future investigations, ultimately she did not make a finding that these matters impaired the adequacy or independence of the investigation. Disappointingly, the Coroner found it unnecessary to engage in an analysis of the legal arguments presented on the question of the adequacy of the current model of investigation, but instead referred to the conclusions and minor suggestions for improvement that have flowed from a recent Office of Police Integrity review. In addition, the Coroner has committed to developing a set of Coronial Guidelines for coronial investigations into police related deaths. Such a step is a welcome enhancement to aspects of the current process but does not address the structural issues relating to the conduct and oversight of the primary investigation into police related deaths.

The HRLC will continue to advocate for the need to overhaul Victoria’s model for investigation of police related deaths. Given the Victorian Government was elected on a platform of integrity, transparency and accountability, it is important to ensure that these principles are upheld when Victorian citizens are injured or killed by Victorian Police.

A copy of the Human Rights Law Centre’s recent report, “Upholding Our Rights: Towards Best Practice in Police Use of force” can be found online here: http://www.hrlc.org.au/content/police-use-of-force-reform-needed-to-uphold-the-right/

On 3 November 2011, the HRLC made a submission to the Australian Government outlining the issues of torture and ill-treatment that Australia should address in its forthcoming periodic report to the UN Committee against Torture, in addition to those already identified by the Committee in the List of Issues Prior to Reporting. The submission identifies five key issues which were not addressed in the LOIPR, but which the HRLC considers engage Australia’s legal responsibilities in relation to torture and ill-treatment, being:

• criminalisation and prevention of torture;
• non-refoulement and bilateral and regional arrangements to address people smuggling;
• treatment of prisoners and conditions of detention;
• involuntary psychiatric treatment; and
• violence against women.

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The Centre has featured in the following media coverage since the last Bulletin:

• Tom Clarke, ‘Time for Rudd to take a stand for basic rights in West Papua’, The Australian, 1 December 2011
• Phil Lynch, ‘Detention conditions: degrading, intolerable and inhumane’, ABC The Drum, 30 November 2011
• Karlis Salna, ‘Papuan leader’s welfare causes concern’, The Age (AAP), 30 November 2011
• Geraldine Coutts, ‘Calls for Australian government to send embassy staff to Papua’, ABC Radio Australia, 29 November 2011
• Liz Cush, West Papuans to raise morning star flag for independence, The Wire, 29 November 2011
• Karlis Salna, ‘Exodus in Paupa amid fears of crackdown’, Sydney Morning Herald (AAP), 27 November 2011
• Farah Farouque, ‘Police training review urged’, The Age, 24 November 2011
• Steve Lillebuen, ‘Vic police training change after death’, 9 News, 23 November 2011
• Irene Scott, ‘Meet the ‘people smuggler’’, Triple J, ABC Radio , 22 November 2011
• Anna Gordon, ‘Protesters call for a referendum on independence for West Papua’, The Wire, 16 November 2011
• Liz Hobday, ‘Occupy Melbourne challenges eviction in court’, AM (ABC Radio), 9 November 2011

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Human Rights Watch’s Elaine Pearson in discussion with Dateline’s Mark Davis

Public Seminar: Human Rights in Asia – Situations of Concern

Join the Deputy Director of Human Rights Watch’s Asia Division, Elaine Pearson, and SBS’s Dateline presenter, Mark Davis, for updates and discussion about situations of concern in Asia including human rights abuses in West Papua and Burma, religious freedom in Indonesia, extrajudicial killings in the Philippines and accountability for war crimes in Sri Lanka. The discussion will also consider what Australia can and should do in the region to better promote and protect human rights.

Date: 12.45pm to 2.00pm on Wednesday, 7 December 2011
Venue: Maddocks, Level 6, 140 William Street, Melbourne
Cost: $20 / $15 (concession) (includes lunch)
RSVP: By 2 December 2011 (Download Booking Form Here)

About Elaine Pearson
Elaine Pearson supervises HRW’s research, reporting, monitoring, documentation and advocacy on human rights issues across Asia, especially South East Asia. She has previously worked for the International Labour Organization, the UN Development Fund for Women, and led the first trafficking program at Anti-Slavery International in London. Pearson is a frequent media commentator, writing for the Guardian, the Wall Street Journal and The Age.

About Mark Davis
Mark Davis is a presenter of SBS’s Dateline and one of Australia’s leading video journalists. His work has been recognised with five Walkley Awards, including the prestigious Gold Walkley for ‘Blood Money’, a Dateline report on the funding of pro-Indonesian militias in East Timor. His groundbreaking work in recent years has included reporting on the trial of David Hicks, securing the first interviews with the Bail Nine, and gaining unprecedented access to WikiLeaks founder Julian Assange.

This event is being co-hosted by the Human Rights Law Centre and Human Rights Watch.

Tuesday 13 December, 12.30–1.30pm, Zinc, Federation Square, Melbourne

The Victorian Equal Opportunity and Human Rights Commission is pleased to invite you to this year’s Human Rights Oration. Keynote speaker, Bernard Salt, is best known for his media commentary on the business implications of demographic and social change. He will blend humour and substance to paint the big picture: How will demographic change shape our community, and what have human rights got to do with it?

This is a free and accessible public event, but registrations are required.

RSVP by Wednesday 7 December to (03) 9032 3448 or rsvp@veohrc.vic.gov.au.

Visit humanrightscommission.vic.gov.au/oration for more details.

Implementing Human Rights in Closed Environments

20-21 February 2012, Monash University Law Chambers, Melbourne

Where liberty is restricted in closed environments, such as prisons, police cells, immigration detention, and closed psychiatric and disability settings, the potential for human rights abuses is high. The management of such environments requires a delicate balance between the rights of individuals, and the safety and security of others in the closed environment and the broader community.

This conference will bring together eminent international and national speakers to examine how human rights are implemented and monitored in closed environments. It will provide an analysis of the comparative experiences of practical implementation of human rights in closed environments, as well as canvas current approaches to the national implementation of the Optional Protocol to the Convention Against Torture, and the role of regulatory frameworks more broadly in facilitating human rights implementation.

Further information is available here.

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Amnesty International – Researcher, Pacific Islands

Amnesty is looking for a Researcher to join their Southeast Asia team to focus primarily on the Pacific Islands. You’ll take the lead responsibility for initiating strategy and a programme of human rights research and action by providing country expertise, research skills and sound political judgement.

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UN Committee against Torture interprets right to redress and reviews States compliance with the Convention against Torture

The November 2011 session of the Committee has been a mixed experience. The Committee has made its best efforts to implement its mandate while States have often played a spoiler role, either due to outright hostility or lack of preparation for engagement with the Committee. During the November session, I was actively involved in country reviews of Germany and Sri Lanka; live webcasting of the session; and the further development of a draft General Comment on article 14 of the Convention Against Torture interpreting the right to redress for torture victims.

The periodic review of Sri Lanka was a much anticipated event and saw a high level of NGO participation seeking to ensure that Committee members were adequately informed about the current situation on the ground. Due to the security situation for human rights defenders in Sri Lanka it is often difficult to get well documented torture cases brought to the attention of the Committee. In a rather innovative initiative, Freedom From Torture, a UK based torture rehabilitation centre, submitted a report analysing trauma documented in medico-legal reports on Sri Lankan asylum seekers in the UK. This information was well received by the Committee members who appreciated the high level of detail and the fact that such documentation is much more difficult for the State delegation to reject as slander.

In order to make this and other country reviews available to stakeholders who are not present in Geneva, a group of Geneva based NGOs jointly produced live webcasts of the periodic reviews of five countries. This gave an opportunity for all stakeholders to follow the discussions between Committee and State delegation and can, among other things, be used for better media campaigning and holding State representatives accountable for what they say during the hearings.

One of the most anticipated elements of the November session was the ongoing development of a General Comment on article 14 of the Convention. The General Comment focuses on the right to redress, which encompasses the right to an effective remedy and reparations for torture victims. The text has a strong victim-centered approach and includes a number of innovative elements. Among these are early determination of victim status and the responsibility for non-perpetrator States hosting torture victims to provide them with access to an effective remedy and reparations. This would to allow for rehabilitation and other reparations to commence before the conclusion of criminal proceedings and ensure effective access to redress for refugees and asylum seekers. Unfortunately, most States who participated in the oral hearing on the draft text took an, at best, conservative approach to interpretation of article 14. Many States advanced some variation of not accepting any obligations for the host States to provide redress. Australia, like many other States, expressed the opinion that providing redress to victims present in Australia but who were tortured by other States goes beyond the scope of article 14. It rather saw this as something that was recommendable for States to do and the Australian delegate highlighted that Australia was implementing initiatives to this effect. While this remains a controversial issue, it was unfortunate that no States were well prepared enough or willing to engage in a discussion of this concept, which is still not settled in academic and other analysis of the Convention.

The Committee is expected to submit a new draft for written comments later this year and will seek to adopt the text during its May 2012 session. During this session it will also review the following countries: Albania, Armenia, Canada, Cuba, Czech Republic, Mexico, Russian Federation, Rwanda and possibly Greece.

Asger Kjaerum is Head of the Geneva Office of the International Rehabilitation Council for Torture Victims

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Respect for human rights and the rule of law is essential for a “just and secure society”

Elizabeth O’Shea

If I were Commonwealth Attorney-General, I would set my sights on achieving the stated goal of the Attorney General’s Department, namely achieving a just and secure society. Unfortunately, we are currently falling well short of this objective. At the most basic level, it requires a universal commitment to the rule of law. Carrying out this task politically involves a combination of listening and leadership.

Human rights are increasing the language through which justice is expressed. We have listened to the Australian population and they support a Charter of Human Rights. The National Human Rights Consultation found that there is a range of opinions but vast sections of society support the introduction of such legislation. This is a mandate to introduce a Charter and it would be a significant step towards building a society that is committed to fairness and equality.

As the only Western jurisdiction without a Charter, Australia is becoming legally isolated. Our statutory interpretation and jurisprudence in respect of human rights, press freedom and administrative law is quickly becoming marginalised. It is hard to criticise human rights abuses abroad when we do not even recognise their existence domestically. Once we have this framework, it will assist us to understand the pursuit of social justice in objective terms and not be subject to the whim of political debate.

As Attorney-General, I would apply a rights-based approach and lead the charge to end mandatory detention. The policy has been widely condemned as costly and inhumane, as well as in breach of our international obligations. Malcolm Fraser put forward a reasonable proposal here that should become bipartisan policy immediately. The over-politicisation of this issue has debased public debate in this country and earned us a reputation as mean spirited and legally backward. It is a persistent cause of shame that will only be resolved with political leadership using a legal framework of respect for human rights and international law.

I would also seek to repeal the legislation in respect of people smuggling, which suffers from the same political short sightedness (and attenuating lack of utility) as the policy of mandatory detention. I would also ensure that all Indonesian children held under this legislation are released, which should have already happened under the current government’s policy. I would appoint a Children’s Commissioner to ensure children have an advocate for them who is independent of the Minister for Immigration and Citizenship.

If I were Attorney-General I would set to work at fixing the problem we currently face with the two dozen or so refugees who are the subject of adverse security assessments from ASIO. I represented two of them earlier this year. They have been accepted as refugees and therefore cannot return to their country of origin, but have adversely assessed by ASIO and therefore cannot be given a visa. As such, they face the very real prospect of indefinite immigration detention.

This is a very serious issue for our system of law. Common law systems have traditionally respected personal liberty and do not permit it to be taken away without a clear and justified basis. But currently, a person seeking asylum, as is their right under international law, can be subject to indeterminate detention authorised by an executive arm of government without any avenues to review the merits of that decision.

I would give the courts greater powers to review these decisions, including, as a start, allowing the person the subject of the assessment to see it. These people could also be released from detention and be subject to monitoring as required whilst the assessment remains.

Such a problem raises the broader question of the role of the national security state in our legal system. In the decade since 9/11, the interests of the amorphous concept of national security have trumped civil liberties and transparency in government. This is an imbalance that must be corrected. The revelations by Wikileaks in many ways reveal the deficiencies of our current information protection laws. We were told that Cablegate would be devastating for international relations. Instead, we see that greater transparency in government has fostered debate about the quality of our democracy. Yet none of this information would have been available to the press or an individual; it would have been protected in the name of national security.

An independent and robust fourth estate is essential to a democratic society. Wikileaks has contributed to this in a fundamental way and deserves legal protection just like any publishing. We need stronger protections for whistleblowers and better access for journalists to government material.

As an Australian abroad, Julian Assange deserves full consular assistance. I would seek undertakings from Sweden that it does not intend to hand Assange over to US authorities via temporary surrender and would do my best to protect his civil liberties in my dealings with the US. Any prosecution of Assange on the basis of his publishing activities would be roundly condemned by me as an obvious and direct attack on a free press. Amongst other things, I would have profound concerns about the ability of Assange to receive a fair trial in the US.

The US, of course, has form in denying controversial prisoners a fair trial and the Australian government also has form in failing to do anything about it when it involves an Australian citizen. David Hicks was coerced into making a guilty plea under threat of torture in Guantanamo in legal forum that was improperly constituted. Torture has no place in a society that respects the rule of law. I would set up an inquiry into Australian involvement in the incarceration and treatment of Hicks and advocate for his conviction to be quashed by the US government. It should be government policy to never let anything like that happen to an Australian citizen ever again.

Some of these reforms may require political effort, but at least they are all mercifully low cost. As Rob Hulls has said, the role of AG is fantastic because “you don’t need a stack of money to make a difference.” But one thing that does require proper funding is legal aid. For our justice system to work, everyone must have access to legal representation. In our society, legal issues can have a very profound affect on people’s lives, particularly those struggling in poverty and battling with debt collectors, discrimination and housing issues. We need good laws, but we also need access to justice.

The Federal legal aid budget was slashed and burned under Howard in 1997 and it has never recovered. We are now well behind in global standards and eligibility for legal aid comes in below the poverty line in many states. It is not just morally troubling; it is also economically foolish as modelling has shown that properly funded legal aid agencies provide savings to other areas of the economy that outweighs the extra cost up to nearly three times over.

Recently, we have seen the first increase in federal funding for legal aid since 1997. But there is still a long way to go. Adverse costs protection for public interest litigants would also promote litigation to create policy and legal change.

These are only the first, but most urgent steps I would take towards a just and secure society. Peace and justice are kindred, inseparable concepts that nurture the better angels of our nature. To achieve this, the central pursuit of the Attorney General should be to build a legal system that is devoted to fairness and equality, both in theory and in practice.

Elizabeth O’Shea is a lawyer practising in the area of human rights and social justice. She has previously worked the International Labour Organisation in Geneva and in Louisiana, USA with a capital defence office representing indigent prisoners on death row. You can follow her on Twitter @Lizzie_OShea

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“The Federal Parliament has today taken a critical step in respecting and promoting human rights,” said Ben Schokman, the HRLC’s Director of International Human Rights Advocacy.

The new laws, passed by the Federal Parliament today, will provide a modest but critical contribution to the legislative and institutional protection of human rights, and will play an important role in human rights education and acculturation.

“Although it falls short of enshrining human rights in a national charter or bill of rights, this is an important step in the right direction. It will ensure the Federal Parliament will be more accountable and transparent about the human rights impacts of new legislation,” Mr Schokman said.

“These important new laws will benefit all Australians, but particularly groups such as the homeless, elderly persons, people with disability and Aboriginal and Torres Strait Islander peoples, all of whom were identified by the National Consultation Committee as particularly vulnerable to breaches of their human rights,” Mr Schokman said.

The Human Rights (Parliamentary Scrutiny) Act 2011 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Act 2011 comprise key elements of the Federal Government’s “Human Rights Framework”, which gives effect to some of the key recommendations of the 2009 National Human Rights Consultation. The new laws:

• require that each new Bill introduced into Federal Parliament is accompanied by a Statement of Compatibility of the proposed law’s compliance with Australia’s international human rights obligations; and
• establish a new Parliamentary Joint Committee on Human Rights to provide greater scrutiny of legislation for compliance with the seven core international human rights treaties to which Australia is party.

The HRLC congratulates the Attorney General, the Hon Robert McClelland MP, for his leadership in seeing these laws through parliament.

The Human Rights Law Centre’s Director of Advocacy and Strategic Litigation, Anna Brown, said it is important to keep in mind that the police shooting of Tyler Cassidy was not a one off.

“More people are shot dead by police in Victoria than in any other state. Unless the Victoria Police force fundamentally change the way they deal with people in crisis, history will continue to repeat itself,” Ms Brown said. “We welcome the Coroner’s call for ‘urgent’ reform of police training to ‘safely manage vulnerable youth and people in crisis’,” said Ms Brown.

As well as structural reform, Ms Brown said a cultural shift was required within Victoria Police, which on average uses force every 2.5 hours.

“Only 73 seconds elapsed between the police first approaching Tyler and him being shot dead. In this short time, Tyler was sprayed with capsicum foam twice, took a phone call and was shot 10 times. Tyler may have been highly agitated and distressed, but police protocols and training should provide officers with the ability to safely deal with a wide range of circumstances without resorting to lethal force,” Ms Brown said.

The Human Rights Law Centre considers that Victorian law and the Victoria Police Manual need to be amended to make it clearer that force is only lawful as a last resort and when strictly necessary.

“Situations do arise where police may need to use force, but it should only be used with the utmost restraint and in a manner which minimizes damages and injury. Force should only be used to safeguard life and property, not for behavioural or compliance purposes,” Ms Brown said.

The Coroner’s findings also highlight the inadequacy of current systems for the investigation of police related deaths, which involve police investigating police. However, Ms Brown said that the Coroner’s recommendation that an “institutionally independent legally trained person” be available to observe the interviewing of police officers implicated in deaths is only a partial answer.

“Human rights law and international best practice require that such investigations be conducted by a body that is fully independent of police. An independent investigative body would not only reduce the risk of collusion or corruption, but increase public trust and confidence in police processes,” said Ms Brown.

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

A copy of the Human Rights Law Centre’s recent report, ‘Upholding Our Rights: Towards Best Practice in Police Use of Force’ can be found online here: http://www.hrlc.org.au/files/HRLC-Police-Use-of-Force-Final-Report-2-September-20111.pdf.

For further information or comments, please contact Anna Brown on 0422 235 522 or anna.brown@hrlc.org.au.

Download the full edition of the Bulletin in PDF.

This edition of the Bulletin includes:

• Opinion piece by Secretary General of Amnesty International, Salil Shetty
• A wrap up of the month’s human rights related news coverage
• International Human Rights Developments, including a call by the Special Rapporteur on Torture for the prohibition of solitary confinement
• National Human Rights Developments, including recent developments relating to the right of transgender people to have their preferred gender recognised
• State-based Human Rights Developments about the Victorian Charter of Human Rights
• Australian Human Rights Case Notes including the Bolt Federal Court case
• A range of International Human Rights Case Notes
• Information about the HRLC ’s policy and case work including efforts to strengthen access to remedies for violation of international human rights
• HRLC Media Coverage
• Details of forthcoming human rights seminars and events
• Resources on human rights, including a review of the book Criminal Process and Human Rights
• Information about human rights jobs, including with ANTaR and NAAJA
• Foreign correspondent about the recent Human Rights Council session in Geneva
• ‘If I were Attorney-General’ by ANTaR’s Jacqueline Phillips

Australia’s reluctance to take the lead on human rights

Just before l got on the plane to leave Australia last month, I heard the news that the Australian Parliament would not be voting on the Government’s proposed Migration Act amendments.

The attempt to revive the Malaysia deal had failed and the Australian Government had been forced into doing the right thing for the human rights of refugees.

Though the end result has led to onshore processing in Australia, it is clear that the path to this result has been riddled by a major moral failure over the issue of asylum seekers and refugees. The issue is still being used as an opportunistic “political football”, putting the lives of some of the most vulnerable people on the planet, including children, at risk.

Seeking asylum when faced with a well founded fear of persecution is not illegal – it is a right. Yet if you were to believe the political debate in Australia, you could be forgiven for thinking that the country was being illegally invaded.

With torture, persecution and conflict creating millions of refugees around the world, the number of asylum seekers that make it to Australia’s far-flung shores is tiny. Almost 48,000 people sought asylum in France last year, while in Australia the figure was just over eight thousand.

Due to the uprisings in the Middle East and North Africa, tens of thousands of asylum seekers have flooded into Europe – where there’s widespread bemusement at Australia’s shopping around for offshore ‘solutions’ for a small number of asylum seekers.

How can Australia hope to establish a regional framework to increase protections for refugees in countries like Indonesia and Malaysia if it sets such an appalling example and tries to outsource its responsibilities?

When it comes to onshore processing, asylum seekers in Australian detention centres may not be dying of diseases spread by rat urine as has happened in Malaysian centres, but the long waiting times are clearly taking their toll on asylum seekers’ mental health.

I saw first-hand asylum seekers at Villawood detention centre in Sydney who had been waiting more than two years for their claims to be processed and relied on sleeping pills to calm their anxiety.

It was gut-wrenching to see refugees who had fled persecution in their own countries locked up in Australia. As I walked around the complexes with electrified fences and barbed wire, there’s no doubt it felt like a prison.

There are over 130 asylum seekers being held at Villawood. The vast majority of these people can and should be processed while living in the community. They told me of their anxiety and despair while waiting years for their claims to be processed. A mother broke down in tears as she described how her children kept asking her why they lived in a jail and always had guards supervising them. I believe Australians are compassionate and would like to see refugees treated better than this.

I found it sickening to see a family locked up with no idea why. It is a flagrant breach of human rights to leave refugees languishing in this legal limbo without even revealing the evidence for the negative assessment and giving them an opportunity to challenge it.

While on my fact finding mission in Australia, I was also profoundly affected by the country’s long history of mistreatment toward Aboriginal people.

An Amnesty International report, published just three months ago, shows how, starved of essential services, Aboriginal people living in traditional Indigenous communities in the Northern Territory will effectively be forced to abandon their homelands. In short, they are being illegally evicted.

Statistics tell a clear story: with proper services like healthcare, education, water and shelter, people can be healthier and live longer on homelands. Uprooted from their lands, they suffer.

Making choices is an absolute right. The government has repeatedly failed to listen to those who are most affected by the decisions which it takes. It needs to do so.

I have been to many places in bad shape in Africa, Asia and Latin America. But during my visit to one of the wealthiest countries in the world, I was devastated by what I saw in a remote community in the heart of central Australia.

In the Utopia homelands, I was astounded to find families living in overcrowded, dilapidated homes, some little more than tin sheds, without basics such as running water, electricity or working toilets and washing machines.

In essence, government is abandoning one third of the Northern Territory’s Aboriginal population, and leaving 500 communities to wither.

Over twenty years of research confirm Aboriginal people living on homelands are healthier and live longer. With basic services like health, education, water and housing, people can lead more fulfilling lives on homelands. Aboriginal people have a right to live on their traditional lands. Yet years of underinvestment by successive governments have forced these people to choose which of their rights they will forfeit: the right to live on their traditional lands or the right to basic and essential services like housing, health and education.

These moves are part of a chain of policy and legal changes that have undermined Indigenous rights. The Aboriginal peoples’ strong desire to sustain communities on their traditional lands must be supported by the federal and Northern Territory governments.

With the Northern Territory Emergency Response legislation expiring next June, Amnesty International is calling for the Government to commit to the future of traditional Aboriginal homelands, to ensure there is a dedicated plan and budget and to ensure the full and active participation in any policy decisions of those directly affected.

As I finished my fact finding mission with key ministerial meetings at Parliament House in Canberra, a world away from the ironically-named Utopia community, I hope that the Australian Government will lift its game on human rights. Sadly, I received no commitments that Australia will improve its human rights record on refugees and stop treating vulnerable people as political footballs.

Australia can be an important voice in this region – but it will of course need to improve its own act, if its voice is to be heard with the clarity that it deserves. On Indigenous rights and the rights of asylum seekers especially, it is sad to see that Australia is currently failing.

Salil Shetty is the Secretary General of Amnesty International.

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Parliament scuttles ‘Malaysia Solution’

Following motions from an ALP state branch calling on asylum seekers be processed in Australia in keeping with the party’s platform, the Gillard Government failed to steer its ‘Malaysia Solution’ through parliament. The resulting return to on-shore processing has been welcomed by the Greens, while a Senate committee has heard $5 million had already been spent on the plan. Despite all this, both the Australian and Malaysian prime ministers have reaffirmed their commitment to the plan.

An Indian student who paid to study in Australia was illegally detained for 18 months at the Villawood Detention Centre as a result of mistakes of immigration officers. The Australian Human Rights Commissioner has found that the student should be paid $597,000 in compensation. More recently, a Sri Lankan man has committed suicide after spending two years in Australian detention centres. He had been accepted as a refugee but was waiting on security clearance. There are 462 such people accepted as refugees but awaiting the results of security assessments.

Melbourne Lord Mayor called in the police to forcibly remove protestors camping in the city square as a part of the global Occupy Wall Street protests. The heavy-handed police tactics that followed have been criticised as excessive and renewed calls for a fully independent, adequately resourced body to investigate police misconduct. Similar scenes were repeated two days later in Sydney as various commentators lamented how impoverished democratic debate has become.

Two female to male transsexuals took their case to the High Court after the WA Court of Appeal upheld an earlier decision rejecting their application to have their gender reassigned. The pair successfully argued they should not have to go through dangerous genital construction surgery to be considered male.

The Herald and Weekly Times and columnist Andrew Bolt will not appeal the Federal Court’s finding that Mr Bolt breached the Racial Discrimination Act and the Herald Sun is to run a prominent corrective notice. Meanwhile much debate about the case continues, with commentators such as David Marr arguing that Bolt’s ‘freedom of speech’ crusade won’t right his wrongs and others eager to highlight that the articles in question were full of factual errors.

A US court has ruled that Rio Tinto can be sued in the United States in a complaint that alleges that Rio Tinto purposely engaged in conduct that assisted in the commission of violence, injury and death in PNG.

Indonesian security forces have been accused of shooting participants of the Third Papuan Peoples Congress prompting calls for Australia to scrap aid to Indonesia’s military and police. This was hot on the heels of violent clashes between security forces and striking workers at the Freeport mine which has been a flash point for decades.

Queensland’s Deputy Premier has introduced into parliament legislation to allow civil unions for same-sex couples. In related news, the Victorian ALP conference has joined other state branches in pressuring the Gillard Government to legalise gay marriage saying it is “about choice, about fairness and about rights”.

An annual snapshot of the juvenile justice system has found Indigenous Australians are more than 15 times more likely to be in detention or community supervision than non-Indigenous youths.

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UN Special Rapporteur on Torture calls for the prohibition of solitary confinement

“Segregation, isolation, separation, cellular, lockdown, Supermax, the hole, Secure Housing Unit… whatever the name, solitary confinement should be banned by States as a punishment or extortion technique,” the United Nations Special Rapporteur on torture, Juan E Méndez, has told the UN General Assembly.

“Solitary confinement is a harsh measure which is contrary to rehabilitation, the aim of the penitentiary system,” the rights expert stressed presenting his first interim report to the General Assembly. In it, he examines the practice of solitary confinement “which is global in nature and subject to widespread abuse.”

There is no universal definition for solitary confinement because the degree of social isolation varies with different practices. However, for the Special Rapporteur, it is “any regime where an inmate is held in isolation from others (except guards) for at least twenty-two hours a day.”

“Social isolation is one of the harmful elements of solitary confinement and its main objective. It reduces meaningful social contact to an absolute minimum,” Mr Méndez said. “A significant number of individuals will experience serious health problems regardless of the specific conditions of time, place, and pre-existing personal factors”.

“Indefinite and prolonged solitary confinement, in excess of fifteen days, should also be subject to an absolute prohibition,” the expert said, noting that scientific studies have established that some lasting mental damage is caused after a few days of social isolation.

The Special Rapporteur also called for an end to the practice of solitary confinement in pre-trial detention based solely on the seriousness of the offense alleged, as well as a complete ban on its use for juveniles and persons with mental illness.

“Considering the severe mental pain or suffering solitary confinement may cause,” Mr Méndez warned, “it can amount to torture or cruel, inhuman or degrading treatment or punishment when used as a punishment, during pretrial detention, indefinitely or for a prolonged period, for persons with mental disabilities or juveniles.”

Solitary confinement for shorter terms or for legitimate disciplinary reasons can also amount to cruel, inhuman or degrading treatment or punishment where the physical conditions of prison regime (sanitation, access to food and water) fail to respect the inherent dignity of the human person and cause severe mental and physical pain or suffering.

“Solitary confinement should be used only in very exceptional circumstances, for as short a time as possible,” the independent expert emphasized. “In the exceptional circumstances in which its use is legitimate, procedural safeguards must be followed. I urge States to apply a set of guiding principles when using solitary confinement.”

In his view, “States should also follow internal and external safeguards in order to provide the greatest possible protection of the rights of detained individuals when solitary confinement is used.”

Mr Méndez (Argentina) was appointed by the UN Human Rights Council as the Special Rapporteur on Torture on 1 November 2010. He is independent from any government and serves in his individual capacity. Mr Méndez has dedicated his legal career to the defense of human rights, and has a long and distinguished record of advocacy throughout the Americas. He is currently a Professor of Law at the American University – Washington College of Law and Co-Chair of the Human Rights Institute of the International Bar Association.

Learn more about the mandate and work of the Special Rapporteur and check the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Source: United Nations Office of the High Commissioner for Human Rights

A group of leading international law experts, coordinated by the International Commission of Jurists and the Maastricht Centre for Human Rights, have adopted a comprehensive set of Principles on the Extra-Territorial Obligations of States in the area of Economic, Social and Cultural Rights.

The Principles set out the legal obligations of States in relation to acts or omissions by a State which have impacts on the realisation of human rights outside of that State’s territory. The Principles affirm that States may be held responsible for the adverse effects of their conduct on the enjoyment of rights beyond their own borders. They also make clear that States are obliged to cooperate and assist other states in realising economic, social and cultural rights of all people.

The Principles also set out the obligations of states to conduct human rights impact assessments of the “risks and potential extraterritorial impacts of their laws, policies and practices” and to “regulate…transnational corporations and other business enterprises” to ensure they do not “nullify or impair the enjoyment of economic, social and cultural rights”.

The Maastricht Principles were developed by 40 international law experts, including members of UN human rights treaty bodies, UN Human Rights Council Special Rapporteurs and leading academic and civil society legal experts.

Australia fails to protect the rights of all its children

Representatives from the Australian Child Rights Taskforce briefed the United Nations on 10 October on Australia’s failure to protect the rights of its most vulnerable children.

The delegation spoke about the child rights issues raised in the Listen to Children Report to the UN which highlights the principal challenges making the Convention on the Rights of the Child a reality for those living in Australia. The HRLC was a member of the Steering Committee responsible for overseeing the report.

The delegation made recommendations in relation to the range of human rights violations affecting Australia’s children, including:

the Northern Territory Intervention;

• the systemic disadvantages of Aboriginal and Torres Strait Islander children;
• juvenile justice;
• children in out-of-home care;
• asylum seekers and children in immigration detention; and
•  children with a disability.

The delegation also stressed to the Committee that Australia has still not established an independent National Children’s Commissioner which could go some way to addressing the current shortfalls in oversight of policy, accountability, monitoring and youth participation.

The reporting process allows the UN to periodically monitor Australia’s commitment to promoting and protecting children’s rights, as well as providing an opportunity for the development of better policies and planning for the promotion and realisation of children’s rights in Australia.

The UN Committee thanked the delegation for the in-depth insight into the situation of child rights in Australia.

The delegation also took part in an NGO forum in Geneva, which was hosted by the NGO Group for the Committee on the Rights of the Child, and convened its own side event on children’s rights issues in Australia.

Matthew Keeley, the Chair of the Child Rights Taskforce and Director of the National Children’s and Youth Law Centre said, “although there is still a great deal of advocacy work to be done, I am extremely proud of the work we have done so far. The Committee praised the delegation’s knowledge and professionalism and asked that we extend its greetings to all the children of Australia.”

Representatives from the Child Rights Taskforce will revisit the UN in May next year when the Australian Government presents their report to the Committee.

Source: National Children’s and Youth Law Centre

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Processing asylum seekers on the mainland is welcomed

The Australian Human Rights Commission has welcomed the government’s move to process claims for asylum on the Australian mainland. The Commission also welcomed the government’s decision to make greater use of bridging visas and community detention.

“For a long time we have said that asylum seekers should be able to live in the community while their refugee claims are processed,” Commission President Catherine Branson QC said.

“This is an effective and humane alternative to indefinite detention, which is extremely expensive and causes people serious mental harm.”

Ms Branson said the use of community-based alternatives such as bridging visas and community detention is in line with existing government policy. It is also in line with Australia’s international obligations.

“The community detention system was created by the former government in 2005 and has been significantly expanded for unaccompanied minors and family groups over the past year,” Ms Branson said.

“Many asylum seekers who arrive in Australia by air already live in the community on bridging visas.”

“The Commission is pleased that the use of bridging visas will be extended to asylum seekers who arrive by boat and we hope to see that happen as quickly as possible,” Ms Branson said.

Ms Branson said that by international standards, Australia receives a very small number of asylum seekers. Asylum seekers who arrive by boat are a small percentage of Australia’s annual migration intake. “The Commission is concerned however, that the government has stated that it remains committed to offshore processing,” she said.

“In addition to onshore processing, the Commission would like to see the government pursue genuine and sustainable regional efforts. Such efforts should be aimed at increasing opportunities for safe, regular migration and enhancing the ability of refugees to access protection across the region.”

Source: The Australian Human Rights Commission

The Human Rights Council of Australia is leading a coalition of Australian and international NGOs to campaign for Australia’s ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990).

The Migrant Workers Convention sets out the human rights of people who are working outside their country of nationality, together with members of their immediate family and dependents. It seeks to secure access to humane conditions of work and an adequate standard of living by protecting such rights as freedom from slavery and slave-like conditions, the right to equal pay for equal work, the right to leave the country of migration and return to their home country, and the right to equal treatment with respect to access to education and vocational training.

Australia has not ratified the Migrant Workers Convention and recently rejected a recommendation made by a number of States during the Universal Periodic Review to become a party. This is despite the fact that there are an estimated 1.5 million people in Australia who would be covered by the Convention, that Australia has ratified all of the other core international human rights treaties, and that Australian ratification could contribute to regional protection of labour rights.

To join the campaign and support the recognition and protection of the fundamental human rights of migrant workers and their families, see: http://hrca.org.au/activities/migrant-workers-convention/

The HRLC welcomes the Federal Government’s announcement that Australia will trial the Extractive Industries Transparency Initiative (EITI).

The EITI is an international initiative that requires governments to publish what they receive in payments from mining, oil and gas companies and for companies to publish what they pay governments. This process is overseen by a multi-stakeholder group comprising equal representation of government, industry and civil society.

The Australian EITI pilot is an important step towards increasing transparency and accountability in the management of our natural resources.

Recent developments have seen the right of transgender people to have their preferred gender recognised protected by the High Court and recognised by the Australian Government.

AB v Western Australia

The High Court recently delivered its most high profile decision on the rights of transgender people to have their gender affirmed in a unanimous judgment in the case of AB v Western Australia. The Court adopted a “fair, large and liberal” interpretation of the purpose of the Gender Reassignment Act to find that transgender people are entitled to have a recognition certificate issued if they are socially “identified” as their preferred gender, irrespective of whether they have undergone every available surgery to remove their reproductive organs. There was a glimmer of hope in the closely-worded judgment, which supported the Act’s purpose (and parliamentary intention) in acknowledging that sex and gender are not necessarily unequivocal, and may be ambiguous. The door was left open to transgender people who have undergone “medical procedures” (such as hormone therapy) but have not undergone surgery to have a recognition certificate issued affirming their gender. The key test is whether their personal characteristics (including lifestyle, appearance and behaviour) mean they are identified as their preferred gender. The High Court was very clear that not having undergone every available surgery, prevailing community standards and expectations or “potential adverse social consequences” are not relevant in this determination. See the case note below for further details about the case.

Passport reforms

A few weeks earlier, in the same week as the inaugural gathering of the Parliamentary Friends Group for LGBTI Australians, the Australian Department of Foreign Affairs and Trade revised its policy to allow sex and/or gender diverse Australians to affirm their preferred gender on their passport. Previously, a person would need to undergo sex reassignment surgery to have a passport issued in their preferred gender. Phalloplasty is unavailable in Australia, and any surgery carries a level of risk. The revised policy allows a pers