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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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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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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 person to affirm their gender, provided that they have a medical practitioner’s letter of support. The letter must certify that they have had, or are receiving, appropriate clinical treatment for gender transition to a new gender, or that they are intersex and do not identify with the sex assigned to them at birth. Passports are now available in M (male), F (female) or X (indeterminate/unspecified/intersex). This inclusion of X as a “third sex” embraces the experiences of many transgender and intersex Australians who do not identify as either male or female, in recognition of sex and gender diversity.

The new policy removes unnecessary obstacles in recording a person’s preferred gender on official documents. The change is a step closer to eradicating discrimination on the grounds of sex and/or gender identity and expression. The policy was developed in close consultation with transgender and intersex organisations and implements recommendations from the Australian Human Rights Commission’s Sex Files Report. Community advocates have hailed the changes as the most significant reform announced by any jurisdiction in Australia regarding sex and gender diverse issues for at least 5 years and a significant step towards greater equality.

Lee Carnie is a volunteer at the Human Rights Law Centre.

Race Discrimination Commissioner, Dr Helen Szoke, believes the new National Anti-Racism Partnership Strategy will reach out to the entire Australian community. The Partnership was announced by the Government in February 2011 as a key initiative of Australia’s new multicultural policy, The People of Australia.

“To make multiculturalism work, we have to confront racist attitudes. The creation of this partnership of key government agencies and community organisations will form a powerful opportunity to build preventative strategies to reduce racism” said Dr Szoke.

Dr Szoke said the Partnership will design, develop and implement the Strategy. It will focus on five key areas of effort” research and consultation, education resources, public awareness, youth engagement and ongoing evaluation.

The National Anti-Racism Partnership and Strategy includes government representatives from the Attorney-General’s Department, the Department of Immigration and Citizenship, the Department of Families, Housing Community Services and Indigenous Affairs as well as the Australian Multicultural Council. From the community, the Partnership includes the Federation of Ethnic Community Councils Australia and the National Congress of Australia’s First Peoples.

Dr Szoke said the combination of Government, independent bodies and representative NGOs means that all areas of racism can be identified and coalitions built to address them.

The Partnership will be launching a process of community consultations early in the new year.

Source: Australian Human Rights Commission

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Calls to streamline and strengthen the Victorian Charter of Human Rights

The Government position in response to the review of Victoria’s Charter of Human Rights and Responsibilities Act, is being coordinated by the Office of the Premier and the Department of Premier and Cabinet. It is likely that a decision on the future of the Charter will be made within Government by December 2011, with a formal Government position announced in March 2012. The HRLC strongly encourages individuals and organisations to write to the Premier calling for the Victorian Charter to be retained and strengthened.

The HRLC has added a page to its website providing an overview of:

• the Scrutiny of Acts and Regulations Committee’s report on the operation of the Charter;
• the Premier’s initial response;
• why and how the HRLC believes the Charter should be streamlined and strengthened; and
• what you can do.

Earlier this year the Scrutiny of Acts and Regulations Committee was tasked by the Attorney-General to review and report on the Charter’s operation and impact. While the Committee recommended against repeal of the Charter in its entirety, the suggested amendments are tantamount to repeal.

In response to SARC’s report, the Premier announced that the Government response will be prepared and co-ordinated by the Department of Premier and Cabinet and noted that the SARC report and many of the public submissions indicate that the Charter of Human Rights has delivered benefits to Victoria, and should not be repealed.

The HRLC considers that the Victorian Charter should be maintained and strengthened because the evidence clearly demonstrates that Charter is delivering benefits for Victorians and promotes transparency and accountability in government. The HRLC also notes that the predicted adverse consequences of the Charter have been proven unfounded and that there is very strong community support for the Charter. The HRLC’s position is explained in further detail in a Briefing Paper to the Office of the Premier.

While the evidence shows that, overall, the Charter is working effectively and efficiently, there are a few modest reforms that the HRLC considers could streamline and strengthen the operation of the Charter. For example:

• The Charter could be amended to include all of the human rights contained in the International Covenant on Civil and Political Rights.
• Human rights enshrined in the International Covenant on Economic, Social and Cultural Rights, could be included while perhaps limiting the application of those rights to areas related to the scrutiny of new legislation.
• Clarification could be made about not limiting absolute human rights;
• the section relating to legal proceedings could be simplified or, better still, the section could be replaced with a provision that establishes a free-standing cause of action for breaches and empowers the courts to grant such relief or remedy as is just and appropriate.
• The requirement that the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission be notified of proceedings brought under the Charter could be repealed or amended to provide courts with discretion to relieve a party from giving notice.
• Amendments could be made to enable the Victorian Equal Opportunity and Human Rights Commission to inquire into and audit the compliance of a public authority’s policies, programs and practices with human rights.
• Amendments could be made to ensure that laws relating to abortion are subject to pre-enactment human rights scrutiny.

The HRLC encourages interested organisations and individuals to support the Premier to do the right thing and retain and strengthen the Victorian Charter. Those wishing to do so should write to the Premier and their local MP. Contact details for Premier Baillieu are available here.

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Australian Human Rights Case Notes

High Court affirms right to gender identity and expression

AB v Western Australia [2011] HCA 42 (6 October 2011)

Summary

The High Court delivered a unanimous judgment affirming the right of transgender people to have their gender officially recognised after undergoing medical or surgical procedures, even if not all of their reproductive organs have been altered. The Court emphasised the purpose of the Gender Reassignment Act 2000 (WA) to alleviate suffering and discrimination transgender people face in society by providing legal recognition of their self-identification and perception of gender.

Facts

AB and AH were born as female but identified as male from an early age, and were diagnosed with gender identity disorder. At the time of hearing, AB was aged 31 and AH was 26. AB and AH had altered their gender characteristics through undergoing bilateral mastectomies and ongoing testosterone therapy. Both have the physical appearance of males and live their lives as men. However, they retain some female sexual organs as neither has undergone a hysterectomy or phalloplasty. Neither AB nor AH wish to undertake any further surgical procedures because they do not consider them necessary to their sense of male identity, and because of the risks involved.

The West Australian Gender Reassignment Board is empowered to issue a recognition certificate as conclusive evidence that a person has undergone a reassignment procedure and “is of the sex stated in the certificate”. The Board refused to issue AB and AH a recognition certificate affirming them as men because of their remaining female reproductive organs and the “adverse social and legal consequences” of issuing a recognition certificate given their capacity to bear children.

AB and AH successful appealed the Board’s decision before the State Administrative Tribunal, before the Tribunal’s decision was overturned by the Court of Appeal.

Decision

The majority in the Court of Appeal assessed “gender characteristics” against “accepted community standards and expectations”, to find that AB and AH would not be “identified” as male while they retained female reproductive organs. The term “identified” was taken as the extent to which a person has assumed the physical characteristics of the opposite sex through surgery, under the assumption that there is a point at which surgery fully renders a person’s transition to male or female.

The High Court held that reliance on “potential adverse social consequences” or “community standard and expectations” were deliberately not included in the Act as a matter of policy and cannot be artificially inserted to deny a recognition certificate. The Court found that the language of the Act revealed the parliamentary intention to use “social recognition” (influenced by physical characteristics being altered) as the relevant test, not the extent to which a person’s body is changed. Broadly speaking, the test is not whether a person has undertaken every surgical procedure available, but whether they have altered their gender characteristics “sufficiently” to be “identified” as the opposite sex. This requires consideration of a person’s physical characteristics (including appearance, behaviour and lifestyle) both in private and public, but does not require knowledge of a person’s bodily state or “remnant sexual organs”. This broader interpretation gives appropriate weight to the Act’s guiding principle; that a person’s sex and gender characteristics are not always unequivocally male or female, but may be ambiguous.

The Court emphasised that the purpose of legislation which protects of enforces human rights must be given particular significance and a “fair, large and liberal” interpretation. In this case, the Act sought to facilitate acceptance and participation of transgender people to live as their reassigned gender within society. The definition of “reassignment procedure” as a “medical or surgical procedure” supports the Court’s interpretation, suggesting that a medical procedure such as hormone therapy may be sufficient to issue a recognition certificate without surgery.

Relevance to the Victorian Charter

The High Court’s decision in AB v Western Australia arguably lifts the bar for interpretation and application of similar laws around Australia and may also be relevant to future applications of the Victorian Charter. Importantly, the decision stands as firm precedent of the acknowledgement that sex and gender may be ambiguous. Thus, flexible understandings are required to grapple with the way that sex and gender are often assumed as unequivocal, in order to adequately respect the rights of transgender people. The decision also stands as authority for “beneficial” legislation which promotes or empowers human rights to be given a broad, fair and liberal interpretation to achieve its human rights objectives, of particular relevance to section 32 of the Victorian Charter.

The decision can be found online at: http://www.gaylawnet.com/laws/cases/ABvStateofWesternAustrlia.pdf

Note: The HRLC recognises that the term “transgender” is contested, and that appropriate language is important when discussing a person’s strongly felt sense of gender. “Transgender” is used in a broad sense inclusive of “transsexual” people, in recognition that a number of people undergoing medical procedures may be affected by the High Court decision but may not identify as “transsexual”, and vice versa.

Lee Carnie is a volunteer at the Human Rights Law Centre.

Aldridge v R [2011] ACTCA 20 (22 September 2011)

Summary

The ACT Court of Appeal has held that, by operation of s 11(2) of the Human Rights Act 2004 (ACT), the arrangements for care of children is a relevant factor to be taken into account in the grant of bail, sentencing, and the grant of bail pending appeal against sentence.

Facts

Edward Aldridge was sentenced on seven counts involving burglary and aggravated burglary to a term of imprisonment of three years and six months, with a non-parole period of two years. He lodged an appeal against sentence and applied for bail pending determination of that appeal. Due to a range of delays attributable to the prosecution, the court and Mr Aldridge, the appeal against sentence was scheduled to be heard just two months before expiration of the non-parole period.

In applying for bail pending appeal, Mr Aldridge relied, among other matters, on the fact that his partner had recently given birth to their second child, was suffering from post natal depression and that Mr Aldridge needed to support them.

Decision

The application was allowed and Mr Aldridge was granted bail.

Justice Refshauge reiterated that bail pending appeal against sentence should only be granted in special or exceptional circumstances (see also Sherd v The Queen [2011] ACTCA 17), but stated that there were a range of matters in the present case which, together, amounted to such circumstances. In particular, the Court noted that:

Mr Aldridge’s partner…has been sentenced to three months periodic detention. That leaves her new born and their other child, a two-year old, without proper care over the time she must be in detention. His partner has no close family to assist.

The proper arrangements for care of children is a relevant factor where, as here, the Human Rights Act 2004 (ACT) in s 11(2) mandates that “every child has the right to the protection needed by the child”. This right has been construed by the Constitutional Court of South Africa to be a relevant matter to be taken into account in sentencing. See S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18, as refined by S v The State [2011] ZACC 7.

The decision can be found online at: http://www.austlii.edu.au/au/cases/act/ACTCA/2011/20.html

Phil Lynch is Executive Director of the Human Rights Law Centre

Eatock v Bolt [2011] FCA 1103 (28 September 2011)

Summary

Federal Court judge Bromberg J recently held that Herald Sun opinion columnist Andrew Bolt and the Herald & Weekly Times had contravened the racial vilification provisions of the Racial Discrimination Act 1975 (Cth) in two articles published in 2009. Bromberg J highlighted that “[a]t the heart of any attempt to secure freedom from racial prejudice and intolerance is the protection of equality and the inherent dignity of all human beings.”

Facts

In 2009, Bolt published two articles – “It’s so hip to be black” and “White fellas in the black” – targeting a group of highly successful Aboriginal people as exemplifying the ‘trend’ of so-called ‘fair-skinned Aboriginal people’ choosing to identify as Aboriginal to gain access to personal and career-based benefits and entitlements, ahead of more deserving darker-skinned Aboriginal people. The articles emphasised the physical characteristics and biological descent of the named Aboriginal people, undermining their legitimacy to call themselves Aboriginal, instead referring to them as ‘political Aborigines’. In response, Aboriginal activist Pat Eatock and eight of the other Aboriginal people named in the articles commenced proceedings in the Federal Court, seeking an apology and injunction on re-publication.

Decision

On 28 September 2011, Bromberg J determined that the articles were reasonably like to offend, insult, humiliate and intimidate ‘fair-skinned’ Aboriginal people under section 18C of the Act. They implied that the fair-skinned Aboriginal people named were not genuinely Aboriginal, had chosen to falsely identify as Aboriginal, and that skin colour is an accurate indication of Aboriginal identity. Bromberg J emphasised that each of the Aboriginal people targeted by Bolt genuinely identifies as an Aboriginal person, and is entitled to do so. They did not ‘choose’ to be Aboriginal, and did not illegitimately or opportunistically use their Aboriginal identity for material gain. This was assessed according to the standards of a reasonable and objective fair-skinned Aboriginal person, without importing general community standards, because to do so would run the risk of reinforcing prevailing prejudice antithetical to the promotional purposes of the Act. Bromberg J also considered how the articles may affect younger and vulnerable Aboriginal people feeling as if they cannot fully identify as Aboriginal for fear of pressure, public disdain or loss of esteem.

Section 18D provides that reasonable and good faith public comments made in the public interest from being unlawful. Bromberg J found that the style, language, manner and errors within the articles prevented Bolt and HWT from claiming this exemption. While it is lawful to publish articles dealing with racial identification, including challenging the genuineness of the identification of a group of people, it is not lawful to do so in the manner in which Bolt wrote the articles in question. The articles contained multiple errors of material fact, distortions of the truth and inflammatory and provocative language. In this sense, the finding of unlawfulness was the same as would have been available under defamation law by virtue of the errors in research and reporting, contrary to journalistic guidelines.

On 19 October 2011, Bromberg J ordered the Herald Sun to publish a 500-word corrective notice next to Bolt’s column twice over the following 14 days. Re-publication of the articles was restricted to ‘historical or archival purposes’, and only where accompanied by the corrective notice. The orders were meant to redress the hurt of the Aboriginal people affected, restore the esteem and social standing lost because of the Articles, inform people about the wrongdoing of the articles and negate the dissemination of racial prejudice.

Relevance to the Victorian Charter

Whilst the decision does not involve application of the Victorian Charter, the case raises interesting questions around balancing the right to be free from racial discrimination against the right to freedom of expression. Issues of censorship, free speech, political correctness and the scope and constitutionality of Part IIA of the Act have also been canvassed in the extensive commentary on the decision.

Given the nature of much of the media reporting on the decision, an observer might be forgiven for concluding that the decision was somehow unprecedented or a departure from accepted legal principles. Arguably the judgment itself is not a radical or unexpected application of the Act. Also of note is the fact that the strategy employed by Bolt and HWT appears to have put him at a significant tactical disadvantage in regards to establishing a defence under s 18D (see para 367), which no doubt contributed to his ultimate failure. One hopes that the Federal Government will be able to bear this in mind and disregard the media hyperbole when grappling with these policy issues in the context of current reforms, namely, the review of federal anti-discrimination laws currently underway and the constitutional recognition of Aboriginal and Torres Strait Islander peoples.

Read a news item and summary of the judgment prepared by the Equal Rights Trust, an international NGO working to combat discrimination and promote equality as a fundamental human right.

The original decision can be found online at: http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html

The orders can be found online at: http://www.austlii.edu.au/au/cases/cth/FCA/2011/1180.html

Lee Carnie is a volunteer and Anna Brown is Director of Advocacy and Strategic Litigation at the Human Rights Law Centre.

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Solicitor-client privilege: sacred principle or conduit for crime?

Federation of Law Societies of Canada v Canada (Attorney General), 2011 BCSC 1270 (27 September 2011)

Summary

In the context of international pressure on states to combat anti-money laundering and terrorism financing, the Supreme Court of British Columbia has held that limitations on solicitor-client privilege imposed by anti-money laundering legislation violate principles of fundamental justice in contravention of the Canadian Charter of Rights and Freedoms. The decision will remove the legal profession from the operation of two pieces of anti-money laundering and terrorist financing legislation in Canada.

Facts

The case was brought by the Federation of Law Societies of Canada (FLSC).  The FLSC’s petition challenged the constitutionality of Canadian anti-money laundering and terrorism financing legislation, namely, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, and the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations, SOR/2002-184.

The impugned legislation provided that members of the legal profession must comply with stringent client identification, verification, recording and reporting obligations for the purpose of combating money-laundering activities in Canada and, in its most extreme, permitted warrantless searches of lawyers’ offices. The maximum punishment specified for non-compliance with these provisions was imprisonment.

The FLSC argued that such requirements, in so far as they apply to the legal profession, breach both sections 7 and 8 of the Canadian Charter, because they (a) impinge upon solicitor-client confidentiality, which is a principle of fundamental justice; and (b) cannot be demonstrably justified in a free and democratic society.

Decision

Was there an infringement of s 7 of the Canadian Charter?

The Court concluded that the impugned provisions infringed s 7 of the Canadian Charter. That section states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The Court held that the test for determining whether there has been a breach of s 7 is two-fold. First, there must be a deprivation of life, liberty or security of the person. Secondly, it must be shown that the deprivation does not accord with the principles of fundamental justice.

The risk that lawyers could be imprisoned as a penalty for non-compliance with the impugned legislation appeared sufficient to engage the first limb of the test. In addition, the Court considered that the underlying purpose of the legislation, being the advancement of the “criminal law interest of deterring, investigating and prosecuting crimes committed by lawyers’ clients”, put the liberty of lawyers’ clients at risk.

The Court held that to satisfy the second limb of the test, it must be established that:

• there is a legal principle;
• there is a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate; and
• the principle is capable of being identified with sufficient precision so as to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.

The FLSC submitted that the fundamental legal principle of solicitor-client confidentiality and privilege was violated by the anti-money laundering and terrorism financing legislation. The Court agreed, citing authority that “the solicitor-client privilege is a principle of fundamental justice and civil right of supreme importance in Canadian law”.

In reaching this conclusion the Court focused on the purpose underlying the impugned legislative requirements. The Court considered it apparent that the legislation required lawyers to collect client information for the purpose of creating a paper trail for the benefit of law enforcement agencies. This infringed solicitor-client privilege to an unacceptable degree.

Was the infringement reasonable under s 1 of the Canadian Charter?

The Court held that the infringement could not be justified under sectio 1 of the Canadian Charter, which provides that Charter rights may be subject only to such reasonable limits “as can be demonstrably justified in a free and democratic society”. Although the Court recognised that the objectives of combating money laundering and terrorist financing in Canada are pressing and substantial, it did not consider the impugned legislation was proportionate to those objectives.

The Court considered that the extent of self-regulation already practised by the legal profession provides sufficient protection against money laundering and terrorism financing, and that the profession is better suited to provide this protection than a state entity. Moreover, the protective measures monitored by the law societies were considered to satisfy Canada’s international obligations to address money laundering and terrorism financing issues within the legal profession. In concluding that the impugned provisions would disproportionately impair the human right to liberty under section 7 of the Canadian Charter, the Court also noted the public interest in a self-regulated, independent bar, free from state interference.

Relevance to the Victorian Charter

Section 21(3) of the Victorian Charter provides:

A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

The right to liberty is the essence of both s 21(3) of the Victorian Charter and s 7 of the Canadian Charter. The Victorian provision, which requires a deprivation of liberty to accord with grounds and procedures established by law, is however narrower than its Canadian counterpart, which requires any deprivation of liberty to accord with “principles of fundamental justice”.

In the Canadian case, it was the failure to accord with a principle of fundamental justice, not simply procedures established by law, which the Court found objectionable. Certainly the case supports the special nature of solicitor-client confidentiality and the lengths to which courts will go to preserve the trust imbued in that relationship. However, unless principles of fundamental justice are considered to fall within the definition of a “procedure, established by law”, this case is unlikely to be directly relevant to the application of section 21(3) of the Victorian Charter.

The decision can be found online at: http://canlii.ca/en/bc/bcsc/doc/2011/2011bcsc1270/2011bcsc1270.html

Anna Martin is a solicitor with the Mallesons Stephen Jaques Human Rights Law Group.

L.N.P. v Argentine Republic, Comm. No. 1610/2007, UN Doc. CCPR/C/102/D/1610/2007 (16 August 2011)

The Human Rights Committee recently found that Argentina’s treatment of a 15 year-old rape survivor violated articles 2(3), 3, 7, 14(1), 17, 24 and 26 of the International Covenant of Civil and Political Rights.

Facts

L.N.P., an Argentinian of indigenous origin, claimed three young men raped her soon after she turned 15 years of age. She reported the rape to local police immediately and was subsequently sent to the local medical centre. L.N.P. claimed that staff at the police station and medical centre kept her waiting for hours, and that police failed to record a complaint of rape, despite her being in tears and covered in blood. The author also claimed that the medical staff subjected her to painful and unnecessary tests, including to ascertain her virginity.

The three accused were eventually arrested and put on trial. A social worker was appointed as part of the judicial investigation to “enquire into lifestyles, habits and any other factors of interest for the investigation.” The author alleged, however, that the social worker only investigated her, ignoring the three accused. The author further alleged that she was never informed of her right to appear as a plaintiff and proceedings were conducted without an interpreter.

The accused were eventually acquitted of raping L.N.P. Although the trial court found that the alleged sexual acts had been proven, it concluded that it had not been established that they occurred without the author’s consent. The fact that the author was not a virgin was a decisive factor in the court’s finding. The court also made repeated enquiries as to whether the author had a boyfriend and was a sex worker.

After learning of the acquittal almost two year later, L.N.P. submitted a communication to the Human Rights Committee, alleging violations of articles 3, 7, 14(1), 17, 24 and 26 of the ICCPR.

Decision

Right to non-discrimination (ICCPR, art 26)

The Committee concluded that Argentina had discriminated against L.N.P. on the basis of her sex and ethnicity, in violation of article 26 of the Covenant. It noted that the Court based its assessment of whether or not the author consented to the sexual conduct on her sex life, including whether or not she was virgin and a prostitute. It explained that “[t]he court … invoked discriminatory and offensive criteria, such as ‘the presence of long-standing defloration’ of the author to conclude that a lack of consent to the sexual act had not been demonstrated.” Her treatment by the police and medical staff, which included subjecting her to painful and unnecessary treatment, inter alia, to ascertain whether or not she was a virgin, constituted discriminatory treatment aimed at casting doubt on the morality of the victim.

The Committee hinted that the decision of the trial court was based on gender stereotypes, though it stopped short of naming the specific stereotypes in operation. The HRC’s decision in this regard, stands in juxtaposition to the recent decision of the Committee on the Elimination of Discrimination against Women in Karen Tayag Vertido v. The Philippines, which expressly names the gender stereotypes that the trial judge relied upon in acquitting the accused of rape.

Right to such measures of protection as are required by status as minor (ICCPR, art 24)

The HRC determined that the court, police and medical staff failed to adopt measures of protection as required by the author’s status as a minor, in violation of article 24 of the ICCPR.

Equality before the law (ICCPR, art 14(1))

According to the Committee, the failure to inform the author of her right to act as a plaintiff, which prevented her from participating as a party to the proceedings and being notified of the acquittal, as well as irregularities with the court’s procedures, such as the failure to provide an interpreter, constituted a violation of the right to equality before the law.

Freedom from cruel, inhuman or degrading treatment (ICCPR, art 7)

The HRC determined that the physical and mental suffering the author experienced because of how she was treated by police and medical staff after being raped, as well as by the court, amounted to a violation of the freedom from cruel, inhuman or degrading treatment.

Freedom from arbitrary interference in private life (ICCPR, art 17)

The HRC concluded that repeated enquiries made by the social worker, medical staff and the court about the author’s sex life and morality constituted a violation of freedom from arbitrary interference in private life. Recalling its General Comment No. 28 on equality, the HRC reiterated that “interference, in the sense in which the term is used in article 17, arises when the sexual life of a woman is taken into consideration in deciding the extent of her legal rights and protections, including protection against rape.”

Right to an effective remedy (ICCPR, art 3(2) read in conjunction with arts 3, 7, 14(1), 17, 24, 26)

Finally, the HRC determined that Argentina had failed to provide access to an effective remedy, as there was no remedy available to the author that would have enabled her to address the violations of her rights by the trial court.

Relevance to the Victorian Charter

The Victorian Charter does not contain an express prohibition against gender-based violence against women. It does, however, protect almost all of the rights implicated in the L.N.P. decision. Criminal investigations and legal proceedings, including in relation to rape, must be conducted in accordance with the rights protected under the Charter, including the rights to non-discrimination (s 8(2)) and equality before the law (s 8(3)) and the freedoms from cruel, inhuman or degrading treatment (s 10) and from arbitrary interference in private life (s 13). Public authorities are also under an obligation to ensure that victims / survivors of rape, who are minors, receive such protection as is in his or her best interests and is needed by him or her by reason of being their status as minors (s 17(2)).

The decision can be found online at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/454/32/PDF/G1145432.pdf?OpenElement

Simone Cusack is a human rights consultant and author (with Rebecca J Cook) of ‘Gender Stereotyping: Transnational Legal Perspectives’ (2010).

Canada (Attorney-General) v PHS Community Services Society, 2011 SCC 44 (30 September 2011)

Summary

The Supreme Court of Canada has held that the failure of the Minister of Health to grant an exemption to allow a safe injecting facility to operate notwithstanding federal anti-drug laws violated the right to life, liberty and security of the person under the Canadian Charter of Rights and Freedoms. This was because the evidence clearly demonstrated that the safe injecting facility was effective in saving lives and reducing drug-related harm.

The Court did, however, uphold the constitutionality of the anti-drug laws themselves.

Prohibitions on possession and trafficking controlled substances are contained in the Controlled Drugs and Substances Act S.C. 1996 and exemptions are permissible at the discretion of the federal Minister of Health.

The Supreme Court of Canada determined that the Act engages some rights contained in the Canadian Charter of Rights and Freedoms but is not in violation of those rights because of the discretion conferred on the Minister.

Facts

The opening of North America’s first government-sanctioned, safe injecting facility, Insite, was approved as a pilot research project in September 2003. The Controlled Drugs and Substances Act S.C. 1996, empowers the Minister of Health to issue exemptions for medical or scientific reasons, or for any purpose the Minister deems to be in the public interest. The Minister of Health granted Insite a conditional exemption from possession and trafficking laws. Temporary exemptions were thereafter granted until 2008 when the Minister effectively refused Insite’s formal application for a continued exemption on the basis that the site “represents a failure of public policy”.

The claimants comprised two public health bodies and two individual clients of Insite. They sought declarations that the Act is inapplicable to Insite and that its application to Insite resulted in a violation of the claimants’ section 7 rights under the Canadian Charter or, in the alternative, that the federal Minister of Health, in refusing to grant an extension of Insite’s exemption, had violated the claimants’ section 7 rights.

One question for the Supreme Court was whether the prohibitions in the Act infringed the rights to life, liberty and security of the person guaranteed by section 7 of the Canadian Charter, which can only be limited in accordance with principles of fundamental justice, and, if so, whether the infringement could be justified under section 1, which provides that such rights are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

Decision

The Supreme Court held that the prohibition on possession in the Act engages the section 7 rights of the claimants but does not violate section 7 because of the discretion conferred on the Minister to grant exemptions for, among other things, health.

The Court further concluded that, while the scheme of the Act conforms to the Canadian Charter, the “arbitrary and unsustainable” actions of the federal Minister of Health in refusing to extend Insite’s exemption were in violation of section 7, and could not be justified under section 1. The Court determined that the exemption provided for in the Act “acts as a safety valve that prevents the Act from applying where it would be arbitrary, overbroad or grossly disproportionate in its effects”.

The conclusion that the Minister had not exercised his discretion in accordance with fundamental principles of justice rested on the trial judge’s conclusions that Insite had, during its eight years of operation, been effective in reducing the risk of death and disease and had not impacted negatively on the legitimate criminal law objectives of the federal government. As such, the Minister’s actions were seen to undermine the very purposes of the CDSA — namely, the protection of health and public safety.

Relevance to Victorian Charter

Supervised injection facilities do not presently operate in Victoria. Earlier this year, Melbourne’s Yarra City Council voted 6-1 in favour of establishing a trial supervised injection facility in Victoria Street, Richmond, which was subsequently dismissed by the state government. A safe injecting site operates in Sydney and health authorities are increasingly recognising that health care for injection drug users is not simply a matter of abstinence or non-treatment.

Sections 1 and 7 of the Canadian Charter correspond to sections 7, 9 and 21 of the Victorian Charter. The rights to life, liberty and security of the person, and the ways in which they may be limited, are in fact outlined more thoroughly in the Victorian Charter, particularly in relation to arrest and detention.

Drawing on this comparative jurisdiction, we see that a law prohibiting possession or trafficking of drugs has the potential both to engage directly the rights to life, liberty and security of the person of clients using supervised injecting facilities and to engage the liberty interests of health professionals providing the supervised services (where the law provides a penalty of imprisonment).

The decision can be found online at: http://scc.lexum.org/en/2011/2011scc44/2011scc44.html

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

Bah v United Kingdom [2011] ECHR 1448 (27 September 2011)

Summary

The European Court of Human Rights has held that a person’s immigration status is a relevant ground of discrimination under Article 14 of the European Convention of Human Rights. However, as a person’s immigration status involves an element of choice, the ECHR held that the justification needed for differential treatment on this basis need not be as weighty as where differential treatment is based on an inherent characteristic such as sex or nationality.

The ECHR also held that the Housing Act 1996 (UK) pursued the legitimate aim of allocating limited social housing resources fairly between applicants, and that the UK was justified in differentiating between persons seeking priority need of social housing based on whether or not a person’s immigration status prevented them from having recourse to public funds.

Facts

The applicant, Husenatu Bah, was a Sierra Leonean national who sought asylum in the UK. Although her asylum claim was rejected, she was granted indefinite leave to remain in the country. Her son later arrived in the UK subject to immigration control, on the condition that he must not have recourse to public funds. As the applicant’s landlord was unwilling to accommodate her son, she applied to Southwark Council for housing assistance in February 2007 on the basis that she had become unintentionally homeless.

Under section 189 of the Housing Act 1996 (UK), an unintentionally homeless person with a minor would typically qualify for priority need of social housing. However, pursuant to section 185(4) of the Act, because the applicant’s son was subject to immigration control, he was to be disregarded for the purposes of determining whether the applicant was in priority need. As such, the Council decided that the applicant did not qualify for priority need. This decision was upheld on review.

In September 2007, the Council helped the applicant to secure a private tenancy outside of Southwark. She remained on the waiting list for a social tenancy, and moved back to Southwark when one became available in May 2009. The applicant complained to the ECHH, alleging a violation of Article 14 of the Convention, taken in conjunction with Article 8.

Decision

Article 8 of the Convention relevantly provides that everyone has a right to respect for his or her home, and that a public authority shall not unlawfully or unnecessarily interfere with this right. Although Article 8 does not expressly provide a right to housing, the ECHR has previously held that where a State elects to provide housing benefits, it must do so in a manner that complies with Article 14. As such, the Court held that the applicant’s complaint was within the ambit of Article 8.

Article 14 relevantly provides that the rights and freedoms set out in the Convention shall be secured without discrimination on any ground such as “national or social origin” or “other status”. Here, the applicant argued that she had been discriminated against based on her son’s nationality. However, the Court held that the ground of distinction was actually her son’s immigration status. While the UK argued that this was not a relevant ground of distinction, the Court considered that it could be brought within the reference in Article 14 to discrimination based on a person’s “other status”.

In considering whether the applicant had been discriminated against on the basis of her son’s immigration status, the ECHR stated that differential treatment will be discriminatory if there is no reasonable justification for it, i.e. if the treatment does not pursue a legitimate aim, or if the means employed to achieve this aim are not proportionate to the aim. The Court stated that as a general rule, where differential treatment is based on an inherent characteristic like nationality or sex, a State will have to present “very weighty reasons” to justify the treatment. However, given that the immigration status of the applicant’s son involved an element of choice (the applicant elected to remain in the UK and chose to have her son join her), the Court held that the required justification need not be as weighty. The Court also noted that States enjoy a wide discretion on socio-economic matters such as the provision of social housing.

Applying these principles, the ECHR held that the imposition of criteria for allocating social housing is a legitimate aim, so long as these criteria are not arbitrary or discriminatory. The Court considered that there was nothing arbitrary about denying priority need status to the applicant based on the fact that her son’s presence in the UK was conditional on him not having recourse to public funds, especially given that the applicant was fully aware of and accepted this condition of her son’s entry into the UK.

The ECHR also held that the means used to realise this aim were not disproportionate. On this point, the Court was particularly influenced by the fact that even if the applicant had been determined to be in priority need of social housing, it would have made little difference because she would likely still have been temporarily housed in the private sector for several months until a social tenancy became available. Accordingly, the Court held that the differential treatment of the applicant was reasonably justified and that there was no violation of the Convention.

Relevance to the Victorian Charter

The ECHR’s finding that a person’s immigration status is a relevant ground of discrimination under the Convention is unlikely to be relevant to cases brought under the Victorian Charter. “Discrimination” is defined in the Charter to mean discrimination on the basis of an attribute set out in section 6 of the Equal Opportunity Act 2010 (Vic). Unlike the Convention, however, this list of attributes does not include “other status” or any other attribute that is likely to encompass a person’s immigration status. However, the ECHR’s comments that the weight of the reasons required to justify discriminatory treatment will vary according to whether the characteristic on which the treatment is based is inherent or involves an element of choice may offer some guidance when Victorian courts are required to consider the scope and application of the right to non-discrimination set out in section 8 of the Charter, and the circumstances in which this right may be limited under section 7(2).

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/1448.html

James Kearney is a Law Graduate and Peter Haig is a Senior Associate with Allens Arthur Robinson.

The Queen (on the application of S) v The Secretary of State for the Home Department [2011] EWCH 2120 (Admin) (5 August 2011)

Summary

The Claimant, S, sought judicial review of the decision to detain him pending deportation. Owing to circumstances relating to his mental illness, the High Court of England and Wales held that S’s detention amounted to false imprisonment and a violation of Articles 3 and 5 of the European Convention of Human Rights, which prohibit inhuman or degrading treatment and protect an individual’s right to liberty and security of the person, respectively.

Facts

When S, an Indian national, was 14 years old, four masked gunmen murdered his parents and violently sexually assaulted him. He left India in 1994 and travelled to Germany via Moscow where he was subjected to further sexual abuse, raped and forced into prostitution. S entered the UK illegally in 1995. In January 2009, he was convicted of unlawful wounding and assault occasioning actual bodily harm, for which he received a 16 month prison sentence.

Whilst in the UK, S became engaged to a Polish woman who, as a national of an EU member state, had the right to remain in the UK. In February 2009, S claimed asylum and made a human rights claim for leave to remain, submitting evidence of his relationship with his fiancée and her children.

At the conclusion of S’s prison sentence, the UK Border Agency (the UKBA) detained him under the UK Borders Act 2007, pending deportation. It was noted at the first review of his detention on 9 May 2009 that he was in good health and that there were “no compelling or compassionate circumstances” in relation to his case. Whilst in detention, however, S suffered from visual and auditory hallucinations and frequently self-harmed. At detention reviews conducted by the UKBA in June and July 2009, no mention was made of S’s apparent mental illness, despite reports from mental health professionals indicating cause for concern. In December 2009, S was transferred to a low security mental health unit under the Mental Health Act 1983. There, he continued to engage in self-harm.

A deportation order was issued for S on 1 February 2010, which rejected his asylum and human rights claims. This order was not served on S until 30 April. On 6 May, S filed a notice of appeal against the decision to deport him. He continued to experience auditory hallucinations during this period and engaged in numerous further acts of self-harm. On 4 August 2010, S was finally transferred to a hospital under the Mental Health Act 1983. A final detention review was held on 8 September which again authorised his ongoing detention. S instigated judicial review proceedings on 21 September 2010 and was subsequently released on conditional bail.

Decision

The Court considered the following issues:

• whether the initial detention of S was unlawful since it had begun before he was served with a deportation order;
• whether the UKBA had failed to apply its own policy relating to the detention of individuals suffering from mental illness adequately, and whether this rendered S’s subsequent detention unlawful; and
• whether S’s treatment by the UKBA breached Articles 3, 5 and 8 of the European Convention.

With respect to the UKBA’s initial decision to detain S, the Court considered that the failure of the UKBA to notify S of its deportation order until some months after the deportation order was made rendered S’s initial period of detention unlawful. The Court stated that “a decision which gives rise to the power to deprive an individual of liberty must a fortiori be subject to the principle of notification.” The Court correspondingly held that this conduct breached Article 5 of the European Convention, which protects the right to liberty and security of the person.

The Court then considered whether, in the context of S’s ongoing detention, the UKBA had adequately applied its policy relating to the detention of persons suffering from mental illness. The policy requires an exceptional justification for the detention of the mentally ill and seeks to balance the need for detention with other considerations, such as the potential deleterious effects of detention on an individual’s mental health. The Court noted that S’s mental health problems were exacerbated by detention and that the “[detention] reviews failed to grapple with the need to understand and apply the policy requirement of exceptional circumstances, to recognise properly S’s mental condition and to consider properly objective evidence as to the effect of detention on it.” The Court therefore concluded that even if the initial detention had not been unlawful, the UKBA’s policy breaches, including its failure to consider the deterioration of S’s mental health, would nevertheless have rendered his detention unlawful.

The Court engaged in a lengthy analysis of European human rights case law and concluded that S’s unlawful detention amounted to a breach of Article 3 of the European Convention. The Court noted that the exacerbation of S’s mental health whilst in detention amounted to “both a debasement and humiliation of S since it showed a serious lack of respect for his human dignity.” The Court highlighted the “negative” duty of States to refrain from inflicting serious harm and the corresponding “positive” duty of States to take measures designed to ensure individuals are not subjected to torture or inhuman and degrading treatment or punishment, which together form the basis of Article 3 protections. In this case, the Court held that both of these obligations had been breached.

Given its findings in relation to articles 3 and 5, the Court considered it unnecessary to consider whether there was also a breach of Article 8 (which protects an individual’s right to respect for private and family life) of the European Convention. The Court did state, however, that it would have found there to have been a breach, had it been necessary to decide this issue.

The Court requested further submissions on the form of relief and the issue of damages.

Relevance to the Victorian Charter

Sections 10 and 21 of the Charter are analogous to Articles 3 and 5 of the ECHR. In light of the relative lack of Victorian jurisprudence with respect to interpretation of the Charter, the Court’s analysis in S v Secretary of State may help to inform the construction and define the breadth of application of Charter provisions, particularly in the context of administrative decision-making and the application of government policy.

The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2120.html

Elliot Luke is a Law Graduate and Abigail Gill is a Senior Associate with Allens Arthur Robinson.

Mahajna v Secretary of State for the Home Department [2011] EWHC 2481 (Admin) (30 September 2011)

Summary

The High Court of England and Wales has upheld the right of people under arrest to be given adequate factual and legal reasons for arrest in a timely manner and in a language they understand, in line with article 5(2) of the European Convention on Human Rights. Justice Nicol of the High Court emphasised that “[r]ights under the common law and the Convention are intended to be real rights and confer real benefits. The Claimant was entitled to know, at least in the broadest terms, why he was being arrested.”

Facts

The UK Secretary of State made a decision excluding Mr Mahajna, a pro-Palestine political activist, from entering the UK on public interest grounds. Mr Mahajna was not notified of this decision before being granted leave to enter the UK on 25 June 2011.

On 28 June 2011, Mr Mahajna was arrested by five Immigration Officers at his hotel in London. One of the officers stated in English that Mr Mahajna was being arrested for detention under the Immigration Act 1971 (UK). Mr Mahajna does not speak or understand English. Mr Mahajna’s interpreter was prevented from communicating with Mr Mahajna at the time of arrest and from accompanying Mr Mahajna to the police station. In the car to the police station, one of the officers incorrectly informed Mr Mahajna that he was being arrested for immigration offences (using an iPhone translation application). The form on which the grounds for arrest were listed contained errors as to the reasons for Mr Mahajna’s arrest, but Mr Mahajna was not able to understand these errors as they were written in English. Mr Mahajna was not provided with the correct reasons for his arrest – namely that the Secretary of State considered his deportation to be imminent and in the public interest – in Arabic until 30 June 2011.

Mr Mahajna remained in detention until he was released subject to stringent bail conditions on 18 July 2011. Mr Mahajna is currently appealing the Secretary of State’s decision that his presence in the UK is inimical to the public good in a separate case.

Decision

Justice Nicol held that the Secretary of State’s statutory power to detain a person pending deportation under the Immigration Act 1971 (UK) is qualified by the right to adequate reasons for arrest. Article 5(2) of the European Convention on Human Rights provides that “[e]veryone who is arrested shall be informed promptly in a language which he understands, of the reasons for his arrest and any charge against him”.

Justice Nicol applied the objective test of “whether, having regard to all the circumstances of the particular case, the person arrested was told in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest”, originally formulated in Lord Justice Clarke’s leading judgment in the European Court of Human Rights decision of Fox, Campbell and Hartley v UK (1990).

Mr Mahajna’s arrest was held to be unlawful following two separate principles.

First, a person under arrest must be told the factual and legal reasons for their arrest at the time the arrest is made. While Mr Mahajna did not have to be informed of all the details, he had a right to be informed that he was being arrested because he was about to be deported. The officers’ failure to state this reason was of itself sufficient to establish that Mr Mahajna’s right to adequate reasons for arrest had been violated, rendering the arrest unlawful.

Secondly, the reasons given to a person under arrest must be in a language which the person can understand. Whether the officers knew Mr Mahajna could not speak or understand English was considered immaterial to determining the objective test that the arresting officers do “all that was reasonable in the circumstances” to provide adequate reasons. On the facts, there was a lack of evidence explaining why the officers had failed to ensure the reasons were available in Arabic, such as allowing Mr Mahajna’s interpreter to communicate with him or ensuring an Arabic speaking officer was present at the time of arrest. Thus, the failure to provide Mr Mahajna with reasons for his arrest in a language he could understand constituted a separate ground on which his arrest was unlawful.

Although the form on which the reasons for arrest and detention were listed contained errors, Nicol J found that these did not prejudice Mr Mahajna as he was unable to understand them at the relevant time. By the time the errors on the form were translated to Mr Mahajna, the accurate reasons for arrest and detention had been provided.

Further, the fact that Mr Mahajna did not ask for further information about his detention does not prejudice his case. Justice Nicol clarified that the onus is on the arresting officers to provide reasons irrespective of whether the person under arrest or detention asks for them.

Relevance to the Victorian Charter

Section 21(4) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) recognises a right to adequate reasons for arrest or detention similar to article 5(2) of the Convention. It explicitly states that “[a] person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.”

Although it is unclear whether Australian courts will adopt the approach taken by the English and Wales High Court, this case indicates that the right to adequate reasons for arrest or detention under the Victorian Charter should be qualified by two key principles. First, the reasons provided should contain both the factual and legal grounds for arrest or detention. Secondly, the reasons should be in a language which the person under arrest is able to understand.

The decision can be found online at: www.bailii.org/ew/cases/EWHC/Admin/2011/2481.html

Lee Carnie is a volunteer with the Human Rights Law Centre.

Zhumbaeva v Kyrgyzstan, UN Doc CCPR/C/102/D/1756/2008 (19 July 2011)

Summary

In this case, the United Nations Human Rights Committee held that Kyrgyzstan was responsible for injuries to, and the death of, a man held in police custody. The Committee based its decision on the principles that a State assumes responsibility for a person that it takes into custody, and that, where that person’s rights are violated, the State must properly investigate and prosecute those responsible to remedy the violation. The Committee’s decision is relevant in a Victorian context because deaths in custody have been and remain an important issue in the Australian political landscape.

Facts

On 24 October 2004, Kyrgyzstani police took Tashkenbaj Moidunov and his wife to a local police station after they were observed arguing in the street. The pair were questioned separately. The victim’s wife was pressured to write a complaint against her husband, but was soon released. The victim died in police custody.

The police officers on duty, Mr Abdukaimov and Mr Mantybaev, gave several contradictory accounts of the victim’s death. On the day of the death:

• The officers told the victim’s wife that her husband suffered a heart attack.
• The officers gave a confused account to the ambulance doctor on the scene. Having been told by the ambulance dispatcher that the victim had hanged himself, the doctor observed red finger marks (but not rope marks) on the victim’s neck. She asked the officers whether the victim had been strangled. They replied that he had suffered a heart attack, and that they had lied to the dispatcher because they had panicked.
•  The officers said in their official statements that the victim had suffered a heart attack.
• Mr Mantybaev recorded in the official deaths register that the officers had found the victim’s body in the street.

In the course of a subsequent official investigation into whether the officers had “negligently performed their duty”, Mr Mantybaev told the prosecutor that the victim hanged himself while unsupervised.

On 21 September 2005, the Suzak District Court found that Mr Mantybaev had negligently performed his duties by failing to take measures to prevent a suicide, and that his negligence resulted inadvertently in the death of the victim. The Court then exempted Mr Mantybaev from criminal liability on the ground that he had reached a reconciliation with the victim’s family.

The victim’s mother appealed the decision to the Zhalabad Regional Court. The Court found that the District Court’s analysis was deficient and ordered a retrial. However, Mr Mantybaev appealed that decision to the Supreme Court of Kyrgyzstan, which quashed the decision of the Regional Court and upheld the decision of the District Court. The victim’s mother, the applicant, then lodged a complaint with the UN Human Rights Committee.

Arguments

The applicant alleged that Kyrgyzstan violated the International Covenant on Civil and Political Rights in three ways:

• It infringed the victim’s right under article 6(1) not to be arbitrarily deprived of his life because he “died in police custody as a result of the use of force by police officers which was excessive and unnecessary”.
• It infringed the victim’s right under article 7 not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, because the officers used unlawful force on him.
• It failed to investigate properly whether the officers were responsible for the victim’s death in contravention of article 2(3).

Decision

The Committee found that all three allegations were sustained.

In relation to the claim under article 6(1), it held that a State assumes responsibility for a person that it takes into custody and that, when a person dies in police custody, the State must properly investigate and prosecute those responsible for the death. The Committee observed that neither Kyrgyzstan nor its judicial authorities had satisfactorily explained the basis upon which it was concluded that the victim committed suicide. This was particularly so because relevant forensic evidence established that the death could have resulted from either hanging or strangulation, and because the officers had given contradictory accounts of the death. In the absence of a satisfactory explanation to the contrary, the Committee held Kyrgyzstan responsible for arbitrarily depriving the victim of his life.

In relation to the claim under article 7, the Committee held that, when a person is injured in police custody, the State must produce evidence to refute any allegation that it was responsible for those injuries. The Committee observed that Kyrgyzstan provided no evidence that its authorities had inquired into – let alone explained – the victim’s injuries.

In relation to the claim under article 2(3), the Committee highlighted that there were several deficiencies in the Kyrgyzstani authorities’ investigation of the victim’s death. Most glaringly, the investigator failed to follow basic forensic procedures, the prosecutor presumed that the victim hanged himself despite substantial evidence to the contrary, the State exempted Mr Mantybaev from criminal responsibility, and the State did not charge Mr Abdukaimov at all.

The Committee determined that Kyrgyzstan was under an obligation to provide an effective remedy; namely, to investigate the victim’s death impartially, effectively and thoroughly, to prosecute those responsible, and to give full reparation.

Relevance to the Victorian Charter

Deaths in custody have been and continue to be an issue of concern in the Australian criminal justice system and political landscape. Section 9 of the Victorian Charter, which establishes a right not to be arbitrarily deprived of life, and section 10, which establishes a right not to be subjected to torture or cruel, inhuman or degrading punishment or treatment, very closely resemble articles 6(1) and 7 of the International Covenant on Civil and Political Rights.

The Committee’s decision in this case could provide interpretative assistance for Victorian courts and tribunals applying these Charter provisions in the context of a death in custody. More specifically, as the Victorian Coroner has an obligation to investigate the death of most persons in custody, the decision highlights one way in which the Coroners Act 2008 (Vic) can be read in light of the Charter.

The decision can be found online at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/450/02/PDF/G1145002.pdf?OpenElement

Andrew Wilcock is a Graduate and Duncan Travis is a Partner at Allens Arthur Robinson.

Equality and Human Rights Commission v Prime Minister & Ors [2011] EWHC 2401 (Admin) (3 October 2011)

Summary

The High Court of England and Wales has partially upheld claims by the Equality & Human Rights Commision and Mr Al Bazzouni (a former detainee) that Government guidance regarding what British intelligence officers should do if they suspect detainees being interviewed overseas are at risk of torture or cruel, inhuman or degrading treatment is unlawful. The High Court held that although the proposed difference between “serious” and “real” risk of torture or ill-treatment was merely academic (both requiring the officer to make a judgment call) and hooding may in some circumstances fail to constitute torture or ill-treatment, the reference to hooding as potentially excepted from the definition of ill-treatment in an Annex to the Guidance should be removed.

Facts

On 6 July 2010, the UK Prime Minister announced in Parliament his intention to establish an independent inquiry about the degree to which British intelligence officers working with foreign security services may have been implicated in the improper treatment of detainees held by other countries in the aftermath of the events of 11 September 2001.

At the same time, the Government published a document entitled Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees (‘the Guidance’).

The Guidance “sets out the principles, consistent with UK domestic law and international law obligations, which govern the interviewing of detainees overseas” and states that “personnel whose actions are consistent with this guidance have good reason to be confident that they will not risk personal liability in the future.” [6]

The EHRC and Mr Al Bazzouni as claimants each contended that the Guidance may cause those acting in compliance with its instructions to act unlawfully.

Decision

The court addressed the following legal questions:

(a) Did the claims raise academic questions which the court should not entertain?

The guidance requires intelligence officers to consider whether the detainee or individual faces “a serious risk of torture at the hands of a third party” [11] before interviewing them or soliciting their detention and, if so, not to proceed.

The EHCR asserted that a “serious risk” constituted a lower legal threshold than a “real risk”, the proper legal test for secondary criminal liability, exposing officers to potential criminal liability for their actions when interviewing detainees. However, the court held that in this context there is no material distinction between a “serious risk” and “real risk” of torture or ill-treatmebt taking place, stating:

The context is that the document is intended to give practical guidance to intelligence officers on the ground. It is not a treatise on English criminal law. What matters is how the document would be read and applied by individual intelligence officers, not how it would fare at the Law Commission or in a University Graduate Law School. The document makes clear that, in all relevant instances other than where there is no serious risk of CIDT (section 2 of the table), the officer must not proceed at all (section 1) or the matter must be referred to senior personnel or Ministers. [61]

An Annexe to the guidance provides a non-exhaustive list of types of treatment that could constitute ill-treatment, including at section d(iii):

methods of obscuring vision or hooding (except where these do not pose a risk to the detainee’s physical or mental health and is necessary for security reasons during arrest or transit). [28]

Mr Al Bazzouni challenged the lawfulness of the exception stated in section d(iii), arguing that hooding of detainees will always constitute torture or ill-treatment and thus be unlawful. In relation to this, the court held that -

The extended debate about whether hooding would be an assault, battery, infringement of Article 3 of the Convention or other illegality is largely beside the point. It may possibly be that, in certain factual circumstances, hooding might conceivably be none of these, although the nature of hooding and its prohibition must mean that it very often would be. [91]

However, the court held that because the “series of difficult and confusing judgments which the exception in d(iii) of the Annex requires for its conceivably lawful operation is too great to expect officers on the ground to give effect to it without risking personal liability… d(iii) of the Annex should be changed to omit hooding from the ambit of the exception.”

In sum, although the court did not make a declaration or grant other substantive belief, its call for removal of the reference to hooding in section d(iii) of the Annex to the guidance is a minor victory, despite the fact that the court agreed that circumstances may exist in which hooding could be legal.

(b) Did the ECHR have standing to appear in the matter?

The court determined that the ECHR has standing to appear in the matter as, by section 3 of the Equality Act 2006, it must exercise its functions with a view to encouraging and supporting the development of a society in which there is, among other things, respect for and protection of each individual’s human rights and, by section 30, it has capacity to institute judicial review proceedings relevant to a matter in connection with which it has a function. [5]

Relevance to the Victorian Charter

Although this decision does not have direct application to the Victorian Charter, it may be regarded by local courts as instructive when interpreting section 10 of the Charter of Human Rights and Responsibilities Act 2006, which recognises a right to protection from torture and cruel, inhuman or degrading treatment, and section 22, which recognises a right to humane treatment when deprived of liberty.

The High Court dismissed both the Claimants’ and Defendants’ lengthy appeals to domestic criminal law, deciding the matter on the basis of practical rather than academic concerns.

The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2401.html

Bethany King is a volunteer with the Human Rights Law Centre.

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Strengthening access to remedies for violations of international human rights

A coalition of leading human rights NGOs – coordinated by the Human Rights Law Centre, the Mental Disability Advocacy Center and the Open Society Justice Initiative – has prepared a major statement for the UN Office of the High Commissioner for Human Rights on strengthening access to remedies for violations of international human rights.

The Joint NGO Statement sets out a range of concrete recommendations to strengthen the individual complaints mechanisms of UN human rights bodies so as to:

• enhance the promotion, protection and fulfilment of human rights;
• assist States to properly understand and discharge their human rights obligations;
• contribute to the accountability of perpetrators of human rights violations; and
• secure access to effective remedies for victims of human rights violations.

The Joint NGO Statement has been prepared as a key input to the process of reform to strengthen the UN human rights treaty bodies initiated by the UN High Commissioner for Human Rights in 2009. The strengthening process is intended to make the work of treaty bodies more coordinated and effective and to enhance the fulfilment of human rights on the ground. The High Commissioner has invited inputs and proposals from states, NGOs, human rights experts and NHRIs in this regard.

The HRLC’s work coordinating the Joint NGO Statement on Strengthening Individual Communication Procedures builds on our work contributing to the Pretoria Statement of June 2011, another joint NGO paper which contains over 60 concrete and practical recommendations to improve the work of human rights bodies at the international level and the fulfilment of human rights on the ground.

On 20 October 2011, a coalition of leading human rights NGOs, including the Human Rights Law Centre, Human Rights Watch and the Commonwealth Human Rights Initiative, sent an Open Letter to the Commonwealth Heads of Government regarding the need to take urgent action on human rights in Sri Lanka at the forthcoming meeting of the Commonwealth Heads of Government in Perth.

The letter was written as further evidence emerges of serious violations of human rights and international humanitarian law against Tamil civilians by Sri Lanka’s military, including systemic rape, murder and the targeting of hospitals and health care clinics.

A HRLC submission to the Independent National Security Legislation Monitor has called for comprehensive reform of Australia’s counter-terrorism laws and measures to enhance their effectiveness and to better respect and protect fundamental human rights.

The Monitor was appointed under the Independent National Security Legislation Monitor Act 2010 (Cth) and is empowered to review and report on Australia’s counter-terrorism and national security legislation, including its compliance with Australia’s international human rights obligations.

The HRLC submission identifies a range of provisions which require reform to ensure compatibility with human rights, including those relating to:

• the definition of “terrorist act”;
• control orders;
• preventative detention;
• ASIO detention powers;
• the listing of “terrorist organisations”; and
• offences relating to association with a terrorist organisation.

The HRLC submission also identifies that the onus is on the government to keep Australia’s counter-terrorism laws and measures under continual review so as to ensure that any infringement of human rights is demonstrably justified, remains strictly necessary, and is reasonable and proportionate.

The HRLC has made a submission to the Expert Panel on the recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution. A national conversation about possible constitutional recognition presents an opportunity to strengthen the recognition, protection and promotion of the human rights of Aboriginal and Torres Strait Islander peoples in Australia.

In its submission to the Expert Panel, the HRLC:

• outlines Australia’s international human rights obligations and highlights recommendations made by United Nations human rights bodies regarding the need for constitutional reform in Australia; and
• provides an overview of relevant human rights obligations and principles that should guide the meaningful participation of, and consultation with, Aboriginal and Torres Strait Islander peoples in the process of considering constitutional recognition.

Further information about the process to consider recognition of Aboriginal and Torres Strait Islander peoples in the Australian Constitution is available at www.youmeunity.org.au

Over the last six years, the HRLC has worked to advance human rights in Australia and beyond through strategic advocacy, research, litigation and education. Acting in coalition with key partners and supporters, our work has contributed to the protection of human dignity, the alleviation of disadvantage and the realisation of equality. We are pleased to present our 2011 Annual Report which details and highlights some of the impacts of the work of our dedicated staff, partners, and donors.

As the Annual Report documents, over the last year alone, our work together with key partners has:

• led to the development of legislation which will require all new Commonwealth laws to be assessed for compatibility with Australia’s human rights obligations;
• restored the right to vote to 100,000 Australians – mainly young people, the homeless and Aboriginal and Torres Strait Islander peoples;
• improved access to healthcare for prisoners and removed some vulnerable children from immigration detention; and
• held Australia to account for its human rights obligations on the international stage.

Thank you for supporting and standing with us in this work.

As the Annual Report sets out, the coming years will present great challenges and opportunities for human rights and the HRLC, including financial challenges. With a number of our funding sources sunsetting in 2012, we need to expand our funding base if we are to continue our record of human rights impact and influence. We strongly believe that now is the time to donate and invest in principled, strategic human rights leadership.

Thank you for your continued and generous support for the Human Rights Law Centre – it is a critical investment in confronting the human rights challenges and opportunities ahead.

Be sure to check out the October guest blogs featured on the HRLC’s Equality Law Reform Project website. Sydney Uni’s Dr Belinda Smith and Deakin’s Dr Dominique Allen have written about moving towards a capacity-based approach to promoting equality, while Australia’s recently appointed Age Discrimination Commissioner, Susan Ryan, took a look at the discriminatory impact tax and superannuation policy issues have on older people.

A new blog by Liz Snell from the Australian Communications Consumer Action Network (ACCAN) advocates for information, communication and technology (ICT) issues in the social inclusion context to be incorporated into the National Human Rights Action Plan. Access to ICT is critical to social inclusion and the realisation of human rights. For example, a recent report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression identifies the importance of the internet as an enabler of human rights, including to exercise the right to freedom of opinion and expression as well as a range of other rights. These issues are particularly acute for many people with disabilities, people in regional Australia, Culturally and Linguistically Diverse communities and many others who experience barriers accessing information and basic services and for whom technology often plays a critical role in enabling participation in society.

Discussion of Information Communication and Technology (ICT) issues in the context of social inclusion was a significant omission from the Government’s draft Baseline Study. The Baseline Study is the first step in the Government’s National Human Rights Action Plan process designed to assess the current strengths and weaknesses in human rights protection in Australia. The final version of the Baseline Study and the draft National Human Rights Action Plan are due for release in December and will hopefully deal more comprehensively with these issues as outlined by ACCAN in its submission.

A particular focus of the blog is ACCAN’s Fair Calls for All campaign which calls for 1800 (freephone) and 1300/13 (local rate) numbers to be charged the same rate from mobiles as they are when called from landlines, given these numbers are required to be used to access essential services and the growing shift towards people using mobile phones as their primary communication device. The high charge rates also have a disproportionately high impact on low income consumers, people experiencing homelessness and other vulnerable communities. For more information on this campaign please read the blog or contact the Australian Communications Consumer Action Network (ACCAN).

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

• Tom Allard, Daniel Flitton and Kirsty Needham, ‘Asylum tragedy: dozens die’, The Age, 2 November 2011
• Anna Brown, ‘Civil Rights and crossing the line’, The Age, 26 October 2011
• Shaun Turton, ‘Jailbirds to be tagged in Manningham’, Manningham Leader, 26 October 2011
• Michelle Slater, ‘The Baillieu Dump: prisons fail legal obligations, says Ombudsman’, Crikey, 25 October 2011
• Jessica Craven, ‘Indonesia ignores UN convention’, Herald Sun, 8 October 2011

Information Session:  Postgraduate Human Rights at Monash

6pm, 8 November, Monash Law Chambers (555 Lonsdale St) Melbourne

Are you considering studying a postgraduate degree in human rights next year? If so, Monash University is holding its next postgraduate information session.

Specialist human rights masters and graduate diploma courses are available for both law and non-law graduates and all teaching takes place in the CBD. Subjects on offer in 2012 include:

• Overview of international human rights law
• Indigenous rights and international law
• International law and economic, social and cultural rights
• Human rights advocacy: Australian law and practice
• International refugee law and human rights
• Human rights in the global economy
• International humanitarian law
• International criminal law: procedural and practical aspects

For details of the registration session click here.

7pm, 9 November, State Library of Victoria (Theatrette), Melbourne.

The Gundjeihmi Aboriginal Corporation and the Environment Centre NT are hosting a special premiere screening of a reworked edition of the 1980 film Dirt Cheap, that provides a unique insight into a story that continues to generate heartache and headlines today. It includes rare footage of Mirrar Senior Traditional Owner Toby Gangale stating clear opposition to mining on his country and documents how the Federal Government overrode the human rights of Kakadu’s Traditional Owners in order to impose a toxic industry in a World Heritage Area.

17- 18 November, Adelaide

The 2011 FECCA Conference, Advancing Multiculturalism, will be held in Adelaide and jointly hosted by the Federation of Ethnic Communities’ Councils of Australia and the Multicultural Communities Council of SA. The FECCA Biennial Conference is Australia’s pre-eminent multicultural conference, drawing together leading decision makers, thinkers and practitioners to discuss and debate key issues that relate to Australia’s cultural and linguistic diversity. These are explored through a series of plenary addresses, panel discussions and presentations. This year, the Conference will explore the theme of Advancing Multiculturalism and promises to be a vibrant and exciting program.

6-7.30pm , 30 November, Melbourne.

Australian Lawyers for Human Rights is hosting a seminar on international aid and human rights. Come along and hear the experienced panel members - Rev Tim Costello AO (CEO of World Vision Australia), Mr Andrew Hewett (Executive Director of Oxfam) and Dr Susan Harris Rimmer (Manager of Advocacy and Development Practice at ACFID) speak about current issues in relation to international aid, the relationship between aid and human rights protection and how you can get involved! Further details are available here.

1-2, 5-7 December 2011

This subject is part of Latrobe University’s Public Interest Law program. In this subject students examine recent developments in international and comparative disability law. They begin with an overview of international human rights law and consider the developing relationship between disability discrimination law and international human rights. Using a comparative law approach students examine issues arising in a range of areas such as mental health; education; employment; housing and health. Further information can be found online here.

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 – an outcome of an Australian Research Council Linkage Grant entitled Applying Human Rights Legislation in Closed Environments: A Strategic Framework for Managing Compliance (2008-12) – 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. The merits and challenges of applying a human rights approach to closed settings will be explored, and the challenges to effecting culture change within such institutions will be discussed. Further information is available here.

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Win free movie tickets to ‘The Tall Man’

Based on the award-winning book by Age journalist Chloe Hooper, ‘The Tall Man’ tells the tragic story of Aboriginal Cameron Doomadgee and how his death in police custody and the subsequent coronial inquest rocked the nation. This gripping and provocative film exposes the inescapable complexities of Australia’s racial politics, and presents a balanced view of a haunting moral puzzle that no viewer will forget.

For your chance to win one of 10 complimentary double passes valid in cinemas from 17 November, be quick to rsvp by clicking here.

The practice of criminal law has at its heart the protection of the rights and liberties of individuals, although many criminal lawyers probably don’t think of themselves as “human rights lawyers” as such. Many of these rights have developed over centuries and most are now enshrined in the statutes governing criminal investigation and procedure. The enactment of human rights legislation in Victoria and ACT has led to considerations of the scope of rights identified by statute as being fundamental and the limits of the legitimate curtailment of those rights by other statutes. Australia has seen in recent years the development of a growing and increasingly significant body of jurisprudence around the application of human rights instruments to the practice of criminal law. Indeed, the impact of human rights on the practice of criminal law has been given significant consideration by the High Court in the long-awaited decision of  Momcilovic v The Queen [2011] HCA 34 (8 September 2011), which unfortunately post-dated the publication of this very scholarly and comprehensive book. As a criminal lawyer without a formal background in broader human rights law, I learned a great deal about the application of human rights jurisprudence from this text, which will be a very valuable addition to the library of anyone involved in the practice of criminal law in Australia.

Criminal Process and Human Rights sets out to conduct a rights based analysis of criminal justice procedure in Australia. As acknowledged by the authors, this is no easy task, given the “patchwork” approach to human rights principles across most Australian jurisdictions. However, the book sets out not just to analyse but to scrutinise Australian law for its compliance with human rights principles, with the hope that it may “bring some unity of approach; that it may encourage greater understanding of the relevance and potential of human rights reasoning and that it may help promote greater consistency and less tentativeness in resort to and application of human rights principles.” In my view, the authors have gone a very long way towards realising these ends.

The human rights considered in the book are those specifically relevant to the practice of criminal law – in particular, the International Covenant on Civil and Political Rights, as given expression in the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities 2006 (Vic), but it also incorporates a significant comparative analysis with overseas jurisdictions, including the UK, New Zealand and Canada.

The structure of the book goes a long way towards breaking down quite broad and diverse areas of law and considering them in a context which makes sense to criminal law lawyers. The first two chapters consider the application of human rights and “rights based reasoning” in a general sense and the way in which they are relevant to the criminal process. The third chapter specifically considers the ACT Human Rights Act and the Victorian Charter and their relevance to the law of criminal procedure. The remaining eight chapters are dedicated the application of human rights jurisprudence to particular facets of the criminal process. The chapters follow a logical sequence, considering the right to liberty – arrest and detention in police custody and ancillary rights of those deprived of liberty; the right to silence; the right to security of the person; and the right to privacy. The last three chapters consider what are described as the “bundle of rights within a right” – the right to a fair trial.

Throughout the book, the practical application of human rights based reasoning to the criminal process is illustrated by interesting and considered summaries and analysis of Australian and international cases. However, the work is unashamedly academic and the analysis is not merely neutral commentary: the authors engage in critical analysis of judicial consideration of human rights, which is at times quite acerbic. For example, in considering delay in the context of an application for bail, the approach of Bongiorno J in Gray v Director of Public Prosecutions [2008] VSC 4 is criticised as assuming that the Victorian Charter creates an “independently operative right of bail where trial within a reasonable time cannot be guaranteed”, while the approach to the Charter of Lasry J in Re Dickson [2008] VSC 516 is described as a “countervailing but equally flawed approach”. Thus, as noted by Justice Refshauge in his Foreward, the text not only describes the law but thoughtfully evaluates it.

The real value of this book to practitioners of criminal law will be its rigorous and thorough examination of the application of human rights principles to criminal procedure in Australian jurisdictions. Particular rights are defined and the limits to them in their practical application are then considered. The content is detailed, well structured and very readable. This book will no doubt stimulate further analysis of the criminal process from a rights perspective and inform further litigation in this emerging area of jurisprudence. It will no doubt be a very valuable resource to both scholars and practitioners of criminal law in Australia.

Jarrod Williams is a Senior Public Defender at Victoria Legal Aid.

North Australian Aboriginal Justice Agency

NAAJA, one of Australia’s most dynamic, diverse and challenging legal practices, provides legal aid for Indigenous people in the Top End of the Northern Territory, with offices in Darwin, Katherine and Nhulunbuy. They are currently seeking a Welfare Rights Officer in Darwin and a Criminal Solicitor in Katherine.

ANTaR, a national advocacy organisation dedicated specifically to the rights – and overcoming the disadvantage – of Aboriginal and Torres Strait Islander peoples, is currently looking to recruit a National Campaigns Manager based in Syndey.

There are a number of positions currently advertised in the community legal sector, including as Manager of Brimbank Melton Community Legal Centre and Director of West Heidelberg Community Legal Service.

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Human Rights Council must fulfil its potential and guard against regression

After the Human Rights Council’s strong showing through the first half of this year, it was perhaps inevitable that its 18th session, held in Geneva from 12 to 30 September 2011, would see a loss of momentum. A combination of weak or non-existent responses to country situations, and a worrying institutional initiative from Cuba, contributed to a frustrating session.

Cuba has a history of targeting the independence of the Office of the High Commissioner for Human Rights, attempting to insert the Council as the appropriate body to oversee OHCHR’s operations and programme of work. At this session its attempted means of doing this was to introduce a resolution on transparency of staffing and budget at OHCHR. While transparency is desirable it is not the Council’s role to hold OHCHR accountable on this score. In the event this resolution was deferred, and instead a presidential statement was issued, requesting the High Commissioner to include information about staffing and budget in the informal activity report produced annually by OHCHR. This will not satisfy the sponsors of the initiative, who will probably revisit this issue at the next session.

One of the most dramatic failures of this session was the aborted attempt to take action on Sri Lanka. At the beginning of the session the UN Secretary-General had forwarded the report of his Panel of Experts on Sri Lanka to the Council. The forwarding of the report represented an invaluable opportunity for the Council to take action and follow-up on its own special session on Sri Lanka, held in May 2009. NGOs made a strong call to this effect, and Canada announced that it would lead negotiations on a draft resolution to set up an interactive dialogue with the High Commissioner on the findings of Sri Lanka’s Lessons Learnt and Reconciliation Commission. Disappointingly, after just one open informal consultation, Canada withdrew its resolution. This effectively made it impossible for any other State to pursue action at this session.

The Council’s response to country situations in general at this session was marked by an emphasis on seeking the cooperation of the country concerned. While this approach works well when that cooperation is genuine, in other cases it leads to weak responses. The prime example at this session was the case of Yemen. At its last session the Council had requested the High Commissioner to report on her visit to Yemen. One of the recommendations the High Commissioner made was to establish an independent, international investigation into the situation in Yemen. During this session’s interactive dialogue with the High Commissioner, Yemen explicitly rejected this recommendation, arguing that it contradicted another recommendation to establish dialogue between Yemeni political parties as a means to resolve political differences. Instead Yemen assured the Council that it would set up its own domestic investigation.

The attempt to work cooperatively with Yemen resulted in a resolution that acknowledges this response by Yemen and calls upon all parties to cooperate with the announced domestic investigations. The High Commissioner is requested to present a progress report on the situation in Yemen at the 19th session of the Council, a weak result that does not satisfy the Council’s protection mandate.

Reflecting the emphasis on cooperation, this resolution was tabled under item 10, ‘technical assistance and capacity building’, an item under which the good will of the State is assumed, and technical assistance pledged to enable action that will to achieve results. In fact at this session no country resolutions were presented under item 4, an item which allows the Council to turn its attention to situations and take appropriate action regardless of the degree of cooperation shown by the country concerned. The result was that all these resolutions were adopted without a vote, but, as in the case of Yemen, many were weaker than could have been wished for.

In another example, the mandate of the Independent Expert on Sudan, which had been established under item 4, was renewed at this session under item 10. This was disappointing in light of the violence in Blue Nile and South Kordofan, and calls from NGOs for a strong mandate renewal. The resolution limits the Independent Expert to assessing Sudan’s technical assistance needs and effectively removes his monitoring role. A resolution on South Sudan similarly requests OHCHR to assess the technical assistance needs of the new State and report back to the 20th session of the Council.

There were some positive developments however, not least the adoption by consensus of a resolution establishing a one-off panel debate on reprisals faced by those who cooperate with the UN human rights system. The creation of this panel, which will take place at the 21st session of the Council, is an important step in the direction of increasing the attention that the Council pays to this neglected and critical issue.

Also noteworthy was the creation of a Special Rapporteur on truth, justice, reparation and guarantees of non-recurrence. This mandate will give the Council an important additional tool to address serious cases of human rights violations. The mandate holder will be appointed at the 19th session of the Council in March 2012.

These positive developments mean that the session was not entirely a loss, but it is essential, if old divisions are not once again to become habit, that the next session see the Council urgently regroup and rediscover the more constructive dynamic that was beginning to emerge.

Heather Collister is Human Rights Officer with the International Human Rights Defenders Programme at the International Service for Human Rights in Geneva.

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Sparing the next generation from a life behind bars

I have to admit that on hearing that I had been appointed Federal Attorney-General, I expect that I would panic; partly at the idea of having to spend so much time in Canberra(!), but mainly at the terrifying weight of expectation on me, both my own and others.

After years as an advocate for social justice, I would now be measured against my aspirations and expected to deliver on the policy solutions I have proposed from outside government.

The fear of failure would grip me. What if I compromise on my principles and lose my moral compass? What if the solutions I have advocated from the outside turn out not to be solutions at all? What if I am seen as betraying the very people I have worked with for so many years? What if I fail?

Having thought deeply about these questions, I hope that I would emerge with some clarity about my purpose and ask a different question; what if I succeed? I would remind myself that change is possible and that my new position gives me a unique capacity to effect it. I would ask for a chance to make change and extend the hand of partnership both to my allies but also to those with different views and agendas.

Then, I would get to work.

First, I would set as my highest priority reducing the over-representation of Aboriginal and Torres Strait Islander people in prison. Twenty years after the Royal Commission into Aboriginal Deaths in Custody reported, Aboriginal people are imprisoned at higher rates than ever before. Although only about 3 per cent of the population nationally, Aboriginal and Torres Strait Islander people make up 2 per cent of the prison population. In juvenile detention, that figure is a staggering 60 cent.

I would issue this mandate to my Department and seek to influence my Cabinet colleagues and Attorneys-General around the country to adopt this as an objective and commit to meaningful action to achieve it.

I would adopt the principle of free, prior and informed consent as my overriding framework, as required by the United Nations Declaration on the Rights of Indigenous Peoples. This provides a process through which Government and Aboriginal communities can have a conversation on an equal footing and ensures that Aboriginal people are partners in the design, development, implementation, monitoring and evaluation of all programs, policies and legislation which affect their communities. I would ensure this conversation was ongoing and informed all of my actions.

To focus whole-of-government activity, I would lobby the Prime Minister and, through the Attorneys-General, all Premiers and Chief Ministers, to ensure that targets to reduce Aboriginal and Torres Strait Islander imprisonment are adopted at the next COAG meeting. Put simply, the achievement of the Government’s existing Closing the Gap targets depends to no small degree on reducing the over-representation of Aboriginal and Torres Strait Islander people in prison. I would make a compelling case for the adoption of a justice target, highlighting the negative effects of imprisonment on health, employment and economic development outcomes. I would seek advice from Aboriginal and Torres Strait Islander organizations, as well as key academics and researchers to inform the development of these targets. In doing so, I would seek to set an ambitious yet achievable goal for government action. At all times, I would be guided by the advice of Aboriginal leaders and communities and the question: would the achievement of this target result in the transformation of lives and communities? I would demand nothing less.

Having set a common national goal, I would seek to generate effective action from the Federal, State and Territory Governments. Aware of the key role of State and Territory Governments in setting criminal justice laws and policies in their jurisdictions, and the politics around law and order issues, I would need to be creative and strategic. I would seek to use all Federal funding, legal and policy levers available to me to influence action at the State and Territory level. This might include offering incentives in different forms to State and Territory Governments who achieve reductions in their Aboriginal and Torres Strait Islander prison population and substantially increasing Commonwealth Government funding for crime prevention, early intervention and non-custodial diversionary programs.

As an overarching policy framework for these investments, I would develop a national Justice Reinvestment strategy. Justice Reinvestment provides a mechanism for the redirection of resources over time from prisons to programs and services in communities which are shown to reduce offending and imprisonment rates.

I would make a robust economic case for this radical shift in policy. Prisons are expensive and have negative social and community impacts. Diverting funds over time from prisons to communities by reducing the prison population will therefore generate a far greater social and economic dividend. I would work closely with Treasury and the Productivity Commission to model the economic impacts of a Justice Reinvestment strategy and use this modeling to lobby other Federal Ministers and State and Territory treasurers.

I would work with my Ministerial colleagues to secure buy-in across a range of portfolios: justice, Indigenous affairs, health, employment and housing. I would present this as a necessary complement to, and extension of, the Government’s Social Inclusion and Closing the Gap agendas. Like the Social Inclusion agenda, Justice Reinvestment is a place-based model, designed to address the causes of over-representation at the community level. I would work with my Ministerial colleagues to build justice mapping into the Social Inclusion agenda and then identify and address service and infrastructure gaps in highly disadvantaged communities.

Then I would turn to addressing the structural deficits in the current system which contribute to over-imprisonment and to the mistreatment and abuse of Aboriginal and Torres Strait Islander people in prison. I’d remind my colleagues of the 270 Aboriginal people who have died in custody since the Royal Commission’s report in 1992. I’d then act to ensure the Australian Government signed the Optional Protocol against Torture to establish an independent national prison oversight body and to mandate the UN Sub-Committee on the Prevention of Torture to inspect Australian custodial facilities and to hold us to account. I would then pressure my state and territory counterparts (again using a range of funding and other incentives and sanctions) to establish independent inspectors for custodial facilities (currently WA is the only state with such an office) and a mechanism for independent investigations into police misconduct and police-related deaths.

Finally, recognising that the lack of access to legal advice remains one of the many causes of Aboriginal over-imprisonment and is profoundly inequitable, I would address the chronic under-funding of the Aboriginal and Torres Strait Islander legal services across the country.

I am hopeful that these actions would have an effect, ultimately sparing the next generation from a life behind bars and building safer and happier communities.

If not, I would be the first to acknowledge my failure and would hold myself and my Government to account. This would mean looking Aboriginal and Torres Strait Islander people squarely in the eye and asking where I went wrong and what I needed to do next to achieve the change they want to see. I would hope that I would make their response my mandate and continue, in partnership and with renewed energy, with this vital work until Aboriginal and Torres Strait Islander people are genuinely equal before the law.

Jacqueline Phillips is the National Director of Australians for Native Title and Reconciliation.

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• Opinion piece by DLA Piper’s Nicolas Patrick on access to justice in times of austerity
• Human rights news in brief, including SARC’s review of the Victorian Charter, Australia’s breach of the ICCPR, resurrecting the Malaysia deal and support for mariage equality in Tasmania
• International Human Rights Developments, including a call by the Special Rapporteur on Indigenous Rights for guidelines for the extractive industry and draft guidelines on the detention of stateless persons
• National Human Rights Developments, including the passage of complementary protection laws, the appointment of Australia’s first Global Ambassador for Women and Girls and the release of a Discussion Paper on federal anti-discrimination laws
• State-based Human Rights Developments, including Victorian Charter developments, an Ombudsman’s report into prisoner access to health care in Victoria and concerns about suicide risks in prisons
• Australian Human Rights Case Notes on two key decisions on the operation of the Victorian Charter in Momcilovic and Sudi
• International Human Rights Case Notes on rioters’ rights, the rights of non-citizens and the right to freedom of expression in the context of employment
• Information about the Centre’s policy and case work, including a landmark case on the rights of non-citizens, a report on police use of force and NGO engagement on the National Human Rights Action Plan
• HRLC Media Coverage
• Details of forthcoming human rights seminars and events, including a HRLC Seminar with Jeffrey L Bleich US Ambassador to Australia, Amnesty International’s annual human rights conference, an exhibition of ASIO film and photos and FECCA’s 2011 conference
• Resources on human rights, including a book review on Critical Perspectives on Human Rights and Disability Law
• Information about human rights jobs, including with Inside Access and the community legal sector
• Foreign correspondent featuring a mid-session update on the 18th session of the Human Rights Council
• ‘If I were Attorney-General’ by Dr Alex Conte providing 10 lessons in reviewing counter-terrorism measures

Opinion

Access to justice in times of austerity

In a recent letter to the New York Times the President of the American Bar Association, William T Robinson III, wrote “Nothing is more precious than our freedom and that comes from access to justice. We must expand legal services for those in need.”

Why does freedom come from access to justice? Because rights are worthless unless they can be enforced. In this way, the roles of courts and of lawyers are fundamental to the effective operation of democratic societies in which individuals enjoy rights and freedoms.

The existence of government funded legal aid programs recognises the fundamental importance of legal advice and representation. It also reflects the fundamental principle that legal representation should be available to everyone in the community, not just to those who are fortunate enough to be able to afford it.

There are however signs that the golden age of legal aid may be slipping away, as governments around the globe slash legal aid spending. In the UK, a recent £300 million cut to Legal Aid has resulted in substantial service reductions in the areas of family law, employment, immigration, housing, debt and welfare. In the United States, the budget for the Legal Services Corporation shrunk to USD404 million in 2011, about one-third less than it was 15 years ago, adjusted for inflation. Last week the Senate Appropriations Subcommittee on Justice confirmed a further reduction to the LSC budget to USD396 million for 2012. In Australia we have seen a 12% reduction in Commonwealth legal aid funding since 1997.

This concerning trend is occurring in parallel with increased volatility in household incomes, which has the potential to increase levels of poverty in developed economies, further magnifying the gap between rich and poor, and leading to increasing levels of homelessness, crime and demand for legal services.

Cuts to the legal aid budget in the UK coincided with calls by the government for the legal profession to increase levels of pro bono. In the US, recent calls by Republicans for cuts to the Legal Services Corporation were defended on the basis that pro bono lawyers would fill any gap created by the withdrawal of government investment. In Canada, the Governor General has called on the legal profession to increase its pro bono commitment from 3-5% of total practice hours to 10% by 2017. In Australia, Governments at both state and federal level require pro bono disclosure as a corollary of appointment to government legal panels.

Most lawyers understand that pro bono is no substitute for properly funded legal aid programs. Indeed, pro bono is optimally effective when deployed in parallel with effective legal aid programs, because it can assist to address the justice gap by serving those people who do not qualify for legal aid, but who cannot afford legal assistance. Pro bono can provide effective access for some clients, but it is not a panacea to unmet legal need in our communities. It has some important limitations. Those limitations include a lack of reach into rural, regional and remote communities where levels of disadvantage are often high, lack of expertise in relevant areas of law, lack of expertise in dealing with high-needs clients, and limitations created by legal and positional conflicts. The limitations of pro bono are compounded by market forces which expand and contract pro bono capacity, not according to levels of unmet need in the community but according to the demands of commercial clients.

The pressure on the private profession to provide more and more pro bono to meet the growing justice gap, and to replace government legal aid, must now be met with a coordinated response from the legal profession. In the same way that the legal profession in the United States came together under the Pro Bono Challenge to set a target and benchmark for pro bono, the whole profession must now respond to the underfunding of legal aid, by sending a clear and unambiguous message that pro bono is not a substitute for government funded legal services. By continuing, year on year, to grow pro bono capacity while government funded legal aid programs are cut or reduced in real terms, the legal profession is complicit in the demise of legal aid.

A strategic response may require the private profession to investigate options such as capping pro bono, or pegging pro bono to government spending on legal aid, such that the level of pro bono made available by the legal profession will only grow as spending on legal aid is increased. Such an approach would ensure that governments could not shirk their responsibilities to fund legal aid, by leaning on the profession to replace government funded services.

Nicolas Patrick is Pro Bono Partner and Head of Pro Bono – Europe, Middle East and Asia-Pacific at DLA Piper.

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News in Brief

Parliamentary committee recommends repealing Victorian Human Rights Charter by stealth

The parliamentary committee reviewing Victoria’s Charter of Human Rights and Responsibilities has presented the Victorian Government with two options on how to water down the Charter. If adopted, Victoria will become the first state in the developed, democratic world to substantially weaken the legal protection of human rights. Premier Baillieu issued a media statement distancing his office from the committee’s report. Liberty Victoria’s Spencer Zifcak said the Committee’s report is profoundly disappointing because it fails to reflect the true weight of the arguments contained in the more than 3000 submissions.

High Court upholds Human Rights Charter in Momcilovic decision…

In a landmark ruling the High Court has affirmed the validity of Victoria’s Charter of Human rights and closed the door on the argument that the Charter transfers power from parliament to the courts. (See case note below for further details.)

…While Victorian Court of Appeal strikes ‘collateral’ blow to Charter

Victorians who believe their human rights have been violated by being evicted from public housing will no longer be able to raise Charter arguments in VCAT and now have to take their cases to the less accessible Supreme Court following the Court of Appeal’s decision about the eviction of Somalian refugee Warfa Sudi and his young son. (See case note below for further details.)

Deportation order ‘violated rights’

The UN Human Rights Committee has ruled that Austraia’s expulsion of Stefan Nystrom to Sweden in 2006 breached the International Covenant on Civil and Political Rights. The human rights experts say Australia’s inflexible policy of deporting non-citizens who break the law breaches international obligations when those people have strong family ties here. (See case note below for further details.)

Gillard hopes to resurrect Malaysia deal

Rights groups have decried the federal government’s decision to try and resurrect its asylum seeker swap dealwith Malaysia. The decision has also stirred tension within the ALP’s left faction, with ‘party elder’ Senator John Faulkner claiming it is inconsistent with the Labor Party’s platform. The Federal Opposition has continued to promise to vote down the amended legislation, while the Australian Human Rights Commission is urging the Federal Government to respect human rights and the rule of law and process asylum seekers onshore.

Mandatory detention of children amounts to child abuse: AMA

The Australian Medical Association has told the joint select committee into Australia’s detention network it has grave concerns for the mental welfare of child asylum-seekers and believes mandatory detention is akin to child abuse.

Tasmanian House of Assembly shows its support for marriage equality

The Tasmanian House of Assembly has become the first parliament in Australia to formally support same-sex marriage with the Labor Party supporting a motion introduced by the Greens calling on the Marriage Act to be amended by the Federal Government to allow same-sex marriage.

Concerns about the independence of inquiry into mental health deaths

Victorian Premier Ted Baillieu is under pressure to expand a probe into patient deaths in mental health wards and to appoint a new inquiry head amid concerns about the independence of the Chief Psychiatrist.

Mentally ill living in ‘Third World’ conditions

Investigative journalists have revealed that conditions in many psychiatric facilities strip patients of dignity and humanity.

Call for ban on sterilising disabled children

The federal Disability and Sex Discrimination Commissioners Graeme Innes and Elizabeth Broderick have called on the Attorney-General to ban the sterilisation of children – unless there is a compelling medical reason – regardless of whether they have a disability, and of adults with disability without their informed consent.

Secrecy laws embarrassing and illegal

A group of prominent lawyers and academics has warned that laws which have ensured top-secret ASIO security files on 39 mostly Tamil refugees can never be opened are a breach international law.

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International Human Rights Developments

UN Special Rapporteur calls for new guidelines on impact of extractive industries and development rights of Indigenous peoples

The UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, has called for the development of international guidelines on the rights of Indigenous peoples in relation to natural resource extraction and development projects.

The Special Rapporteur’s 2011 report to the UN Human Rights Council is in two parts.

The first part summarises the Special Rapporteur’s activities in the third year of his mandate. The Special Rapporteur has cooperated with other international and regional mechanisms and bodies on Indigenous rights and undertaken various activities in his four areas of work, being: promoting good practices; country reports; specific cases of alleged human rights violations; and thematic studies.

In the second part of the report, the Special Rapporteur discusses extractive industries operating within or near Indigenous territories. The Special Rapporteur investigated issues for Indigenous rights associated with large-scale extraction or development of natural resources, distributing a questionnaire to governments, Indigenous peoples, corporations and civil society. The questionnaire responses raised issues of environmental impact, social and cultural effects, lack of consultation and participation, lack of clear regulatory frameworks and other institutional weakness and the question of tangible benefits for Indigenous people.

The Special Rapporteur found that, based on the responses to the questionnaire, there is growing awareness of the risks that industry operations can have negative impacts on Indigenous rights. However, the Special Rapporteur also found that there was a lack of a minimum shared understanding between governments, Indigenous peoples and corporations in the context of extractive or development operations and Indigenous rights as to the application of international standards, or institutional arrangements and methodologies required to give international standards full effect.

In order to address this absence of shared understanding, the Special Rapporteur proposes to work towards the operationalisation of Indigenous peoples’ rights and related institutional guarantees in the context of extractive and development operations. The Special Rapporteur recommended that the Human Rights Council request that he develop guidelines or principles to assist States, corporate actors and Indigenous peoples to act in accordance with international Indigenous rights standards in relation to extractive or development operations. Such principles would build upon the work of the ‘Protect, Respect and Remedy’ human rights framework developed by the Secretary-General’s Special Representative on Business and Human Rights. Practical guidance on the application of Indigenous rights to extractive or development operations would be provided by the principles, which would delineate the roles and responsibilities of governments, corporations and Indigenous peoples.

Consensus building would be a key element in developing such guidelines, requiring wide ranging consultation with all relevant stakeholders including governments, Indigenous peoples, corporate actors and international institutions. Preparation of the guidelines will include stakeholder consultation, best practice exchange and specific expert studies on Indigenous peoples and extractive industries.

Producing such guidelines or principles would be a significant step towards the goal of articulating and defining the obligations for governments, corporate actors and Indigenous peoples under international Indigenous rights in relation to extractive and development operations. The principles will likely provide a useful resource for governments when developing their legal and policy frameworks for extractive and resource development projects and indigenous peoples. Similarly, corporations undertaking extractive or resource development projects will be able to use the principles for guidance on the scope and nature of their obligation to respect indigenous rights.

The report can be found online at: http://unsr.jamesanaya.org/annual-reports/report-to-the-human-rights-council-a-hrc-18-35-11-july-2011.

Swee Leng Harris is a Lawyer with Allens Arthur Robinson

ERT Draft Guidelines on the Detention of Stateless Persons

The Equal Rights Trust (ERT) seeks feedback on its Draft Guidelines on the Detention of Stateless Persons. The Guidelines address the detention of stateless persons and recommend implementation of national procedures to determine stateless status.

In ‘Unravelling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons’ (2010), the ERT identified a gap in protection regimes for stateless persons, particularly those in detention. The Guidelines seek to fill this gap and provide detail on how states should treat stateless persons in order to comply with their international human rights obligations.

The Guidelines are particularly relevant in Australia, given the number of stateless people facing indefinite and arbitrary detention in immigration detention centres. This group includes both refugees who are the subject of an adverse security assessment (and are therefore de facto stateless) and asylum seekers whose refugee claims were rejected, but who are stateless or otherwise cannot be returned to their country of origin.

Australia’s international human rights obligations require that these people be removed from immigration detention as soon as possible.

Submissions on the Draft Guidelines close on 10 October 2011 (for background to the Guidelines and specific questions to consider, see ERT’s Introductory Note). Please address all feedback to Amal de Chickera.

You can subscribe to the ERT mailing list here.

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National Human Rights Developments

Complementary Protection Bill strengthens protection from torture and other serious human rights violations

The HRLC congratulates the Federal Government on the passage of the Migration Act Amendment (Complementary Protection) Bill 2011 on 19 September 2011.

Complementary protection is the duty owed by a State to not return people to face torture or other serious human rights violations in their country of origin, even if their cases do not fall within the scope of the Refugee Convention. To date, these obligations have received insufficient legislative protection in Australia.

The Bill provides for the grant of a protection visa in circumstances where, as a foreseeable consequence of removal from Australia, there is a real risk the applicant will be:

• arbitrarily deprived of their life
• subjected to the death penalty
• subjected to torture
• subjected to cruel or inhuman treatment or punishment
• subjected to degrading treatment or punishment.

National Human Rights Action Plan: A sound baseline for human rights

On 21 April 2010, the Federal Government launched ‘Australia’s Human Rights Framework’, setting out a number of measures the Government intends to take to protect and promote human rights in Australia, including the commitment to develop a new National Human Rights Action Plan which is intended to outline future action for the promotion and protection of human rights.

On 8 July 2011, the Attorney-General released a Draft Baseline Study for comment as the first step towards implementing a National Human Rights Action Plan. To be effective, a Baseline Study must provide a comprehensive and frank appraisal about the state of human rights in Australia. This is because the issues identified in the Baseline Study form the basis for future government action under the National Action Plan and also for the development of government practices beyond the National Action Plan.

On 9 September 2011, the Human Rights Law Centre made a major submission on the draft Baseline Study entitled A Sound Baseline for Human Rights in Australia. The submission builds on the extensive recommendations made in Making Rights Real: A National Human Rights Action Plan for Australia. Making Rights Real was a major submission made by the HRLC in response to the Attorney-General’s Background Paper which set out the Government’s proposed approach to developing the National Action Plan as well as a Baseline Study.

A Sound Baseline for Human Rights in Australia aims to provide detailed and constructive recommendations on the draft Baseline Study. The submission makes the following general comments on the Draft:

• procedural aspects of the development of the Draft have not been aligned with the recommendations of Making Rights Real and international best practice;
• the Draft selectively refers to positive examples of initiatives in states and territories without identifying the problems and deficiencies in other states and territories;
• certain critical areas affecting human rights are missing or require further discussion;
• key sources of prior authoritative research and evidence have been omitted;
• the Draft does not reference all relevant all international recommendations from treaty bodies, reports of Special Procedures of the UN Human Rights Council and UPR recommendations; and
• the “Issues a National Action Plan Could Address” sections of the Baseline Study do not clearly identify and articulate the issues in question and should do so. To the extent that actions are proposed, these should be structured as action points following the guidelines set out in the UN Handbook.

In addition to these general comments, the submission includes:

• recommendations for amendments or additions in specific sections of the Draft;
• recommendations for additional sections or topics to be added to the Draft; and
• where appropriate, suggestions as to additions or refinements to the lists of “issues a national action plan could consider” in the Draft, but otherwise refer the Government to the more detailed suggestions as to substantive areas and actions that could be included in the National Action Plan set out in Making Rights Real.

For more information and resources on the National Human Rights Action Plan process please visit our dedicated website www.humanrightsactionplan.org.au and see the piece below about the HRLC’s work regarding NGO engagement on this topic.

Immigration detention system in need of reform

Australia’s system of mandatory, prolonged and indefinite detention should be reformed so that immigration detention is used as a last resort and for the shortest possible time, the Australian Human Rights Commission has said in its submission to the Joint Select Committee on Australia’s Immigration Detention Network.

Commission President Catherine Branson QC said the Commission had made 31 recommendations to address longstanding concerns that the immigration detention system breached Australia’s international human rights obligations.

“We remain seriously concerned that people are being held in immigration detention facilities for long periods, without any time limits and without access to the courts to challenge their detention,” Ms Branson said.

“We’ve visited detention facilities and have seen first-hand a marked deterioration in people’s mental health and wellbeing as a result of being detained for a long period with no end date. Anxiety and frustration levels have also risen due to long delays with processing of their refugee claims.

“The conditions in some detention facilities are making things worse. Many people are detained in remote facilities in harsh environments, in crowded conditions, behind high wire and electrified fences. They often have limited access to essential services like health and mental health care.”

Ms Branson said the situation had become more concerning as the number of people in detention had grown, the numbers being detained for longer periods had grown and incidents of self-harm and suicide had dramatically increased.

“The system of mandatory and indefinite detention is damaging men, women and children. This parliamentary inquiry provides an important opportunity for Australia to change its approach to bring it into line with international standards.”

Ms Branson said the Commission continued to call on the Australian Government to implement its 2008 policy under which immigration detention was to be used as a last resort and people were to be detained only if they posed an unacceptable risk to the Australian community.

“Other countries don’t find it necessary to use a policy of mandatory detention without time limits or access to judicial review,” Ms Branson said.

Ms Branson said community-based alternatives were often much cheaper, more effective in facilitating immigration processing, and more humane than holding people in remote detention facilities for long periods of time.

“Alternatives such as community detention and bridging visas should be used to the greatest possible extent,” Ms Branson said.

Source: Australian Human Rights Commission

Australia appoints Global Ambassador for Women and Girls

The Gillard Government has announced career diplomat Penny Williams will be Australia’s first Global Ambassador for Women and Girls, putting Australia at the forefront of global efforts to promote the role of women and girls.

The Prime Minister said that in the role, Ms Williams will ensure the needs of women and girls are properly represented in Australia’s overseas development program and in foreign policy more broadly.

Women and girls make up two thirds of the one billion people in the world who lack basic literacy skills, with almost 35 million girls world-wide not getting even basic primary-level education.

By improving access to education and health services for women and girls, we are able to lift families and communities out of poverty.

Foreign Minister Kevin Rudd said that the evidence shows that aid spending is more effective when women are central to our investment.

The Ambassador’s priorities will include co-ordinating and promoting Australia’s work to eradicate violence against women, improving access to services for women, the protection of women and girls in conflict zones and increasing the representation of women in leadership roles.

Minister for the Status of Women, Kate Ellis, said as a prosperous and wealthy nation, Australia has a responsibility to work for the safety and opportunity of women and girls across the world.

Ms Williams will focus particularly on the Asia Pacific region which was ranked lowest in the world by the United Nations Development Programme on a range of gender indicators including access to education, employment and political participation.

At home, Ms Williams will champion the needs of women and girls in Australia’s foreign policy thinking. On the world stage, she will be an international advocate for the Australian Government’s work.

Source: Media release on the Foreign Minister’s website

Australia’s Fifth Report under the Convention against Torture

As part of its obligations under the Convention Against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment, the Australian Government is required to submit a periodic report on measures taken to give effect it its obligations under CAT.

The Government report, along with reports submitted by Australian NGOs, will form the basis of the Committee’s periodic review of Australia, likely to take place in 2013.

The Commonwealth Attorney-General’s Department is preparing the Government’s report, which will respond to a List of Issues developed by the CAT Committee in November 2010 (CAT/C/AUS/4). The Attorney General’s Department has called for NGO input in relation to the List of Issues or other measures and developments relevant to Australia’s obligations under CAT. Submissions are due by 4 November.

Human rights and the public sector

Public sector officials have a critical role to play in achieving a fair go for all Australians.

A greater focus on human rights in the Australian public sector is important to ensure that policies, programs and service delivery are focused on the people receiving services and benefiting from government policies and programs.

Australia’s Human Rights Framework contains measures that are aimed at enhancing understanding of, and respect for, human rights in Australia and ensuring appropriate recognition of human rights issues in legislative and policy development.

In addition to this, the Government expects public sector officials to treat all people with respect and consideration, and avoid making assumptions based on personal characteristics or behaviour. This expectation extends to departments as employers and public servants as employees and colleagues, and ensures the Australian Public Service is a safe and respectful workplace that reflects the diversity of the people it serves.

Working in a way that is compatible with human rights will lead to improved policy and legislation, better workplaces and fairer outcomes for everyone in Australia.

The Human Rights public sector Education Program comprises a range of resources and guidance materials that will:

• assist public sector officials to understand human rights obligations
• strengthen the capacity of legal and policy officers to develop policies, programs and legislation that are consistent with human rights, and
• provide guidance to administrative decision-makers on relevant human rights considerations to take into account.

Source: Commonwealth Attorney-General’s Department

United Nations Human Rights Recommendations Database

During its Universal Periodic Review (UPR) appearance in January 2011, the Australian Government committed to increasing Australia’s engagement and consideration of our international human rights obligations domestically by, amongst other things, establishing a publicly accessible, online database of recommendations from the UN human rights system, including recommendations made by UN human rights treaty bodies to Australia as well as recommendations made to Australia in the Universal Periodic Review.

This database is now online and can be downloaded as a Microsoft Excel spreadsheet or PDF document from the Attorney-General’s webpage.

Discussion paper released on anti-discrimination laws

On 22 September 2011 the Attorney General and Minister for Finance and Deregulation released a public discussion paper to seek community views on the consolidation of Federal anti-discrimination laws.

The consolidation project aims, among other things, to “explore opportunities to improve the effectiveness of the legislation to address discrimination and provide equality of opportunity to participate and contribute to the social, economic and cultural life of our community.” The discussion paper raises several questions around areas for reform, including definitions of discrimination, protected attributes, exceptions and exemptions from the anti-discrimination laws and complaints and compliance.

Submissions on issues raised in the discussion paper will be accepted until 1 February 2012 and exposure draft legislation will be released for further public consultation in early 2012.

Resources on equality law reform – including materials from the Human Rights Law Centre’s Reforming Australia’s Equality Law conference – are available at www.equalitylaw.org.au.

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State-based Human Rights Developments

High Court affirms importance and validity of Victorian Charter of Human Rights

In a landmark decision, the High Court of Australia has upheld the validity, operation and importance of Victoria’s Charter of Human Rights.

In the case of Momcilovic v The Queen & Ors [2011] HCA 34 (8 September 2011), the High Court held that the Charter protects fundamental human rights and maintains parliamentary sovereignty.

By a majority of 6-1, the Court held that s 32(1) of the Charter, which requires that Victorian legislation be interpreted consistently with human rights, is an ordinary principle of statutory interpretation that does not empower the courts to radically re-interpret legislation or subvert parliament’s intent. According to Phil Lynch of the Human Rights Law Centre, which made submissions to the High Court in the matter, “The Court has affirmed that, consistent with the rule of law, the judiciary has an important role to play in upholding human rights. Far from being undemocratic, an independent judiciary which is empowered to interpret laws to protect rights and freedoms is a fundamental feature of our liberal democracy.”

By a majority of 4-3, the High Court also held that the power conferred by parliament on the courts to make a declaration notifying parliament where legislation may be incompatible with human rights is valid. “Declarations of Inconsistent Interpretation under the Charter play an important role in calling the attention of parliament and the people to laws that may be inconsistent with human rights,” said Mr Lynch. Such declarations do not affect the validity of legislation, but instead act as a trigger for parliament to consider whether a particular law should be amended to better protect the human rights of all Victorians.

The High Court’s extensive consideration of the Charter arose in an appeal by Vera Momcilovic against her conviction for drug trafficking. The Court quashed her conviction and ordered a re-trial. It is important to note, however, that the conviction was not quashed because of the Charter. Instead, the High Court upheld the appeal on the basis that the Victorian courts in which she was convicted had misconstrued the operation of the Drugs Act.

According to Mr Lynch, the High Court’s decision is particularly important and timely in light of the Baillieu Government’s current review of the Charter. “Any suggestion that the Charter shifts power to judges and usurps parliamentary sovereignty can be laid to rest,” said Mr Lynch. “There is also no longer any doubt, if ever there was, that the Charter is valid and constitutional”.

Mr Lynch said that the High Court’s decision has helpfully identified the need to clarify the operation of s 7 of the Charter, which relates to permissible limitations on rights. Earlier in the week, on Tuesday, the Victorian Court of Appeal decision in Sudi also identified the need to clarify s 39, which relates to legal proceedings. “These landmark judgments are very timely,” said Mr Lynch. “Together, they affirm the validity and operation of the Charter but also helpfully chart the course for minor amendments to the Charter to increase certainty in the interpretation of laws and provide Victorians with better access to remedies for human rights breaches.”

The judgment is available at http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html.

Victoria risks becoming first state in democratic world to wind back human rights protections

Victoria will become the first state in the developed, democratic world to substantially weaken the legal protection of human rights if the recommendations of a parliamentary committee on the future of the Victorian Charter of Human Rights are accepted.

The Scrutiny of Acts and Regulations Committee has tabled its review of the Victorian Charter of Human Rights and Responsibilities. While the Committee recommends against repeal of the Charter, it does recommend that courts have no role or a substantially reduced role in enforcing human rights and providing remedies when they are breached. It also recommends that government departments and public services have no or reduced obligations to act compatibly with rights.

“Overall, the Committee’s report is profoundly disappointing,” said Phil Lynch, Executive Director of the Human Rights Law Centre. “The recommendations do not reflect the overwhelming evidence as to the value and benefits of Victoria’s Charter of Human Rights. These benefits include greater government accountability, more responsive public services, and a better deal for some of Victoria’s most vulnerable groups, such as people with disability, people with mental illness and the homeless.”

Mr Lynch said that while the report made some welcome recommendations that could streamline and strengthen parliamentary scrutiny of the human rights impacts of proposed laws, most of the proposed reforms were regrettable and regressive. “Parliament has an important role to play in promoting and protecting human rights, but it’s not the be all and end all. Government and public services also have a critical role to play in respecting human rights and courts in upholding them,” said Mr Lynch.

“This review should have been used as an opportunity to strengthen the human rights of all Victorians, such as by amending the Charter to enshrine the rights to adequate housing, education and health care,” he said. “Instead, if enacted, the recommendations will reduce government accountability and Victorians’ access to a fair deal if their rights are breached.”

The Victorian Government has six months to respond to the report. “If the Baillieu Government is serious about its commitment to a fair and just Victoria, it will reject most of the recommendations in this report,” said Mr Lynch. “Victorians deserve greater recognition and protection of values such as freedom, dignity, equality and respect, not less.”

The SARC report is available online at: http://www.parliament.vic.gov.au/sarc/article/1446.

The Human Rights Law Centre submission to the inquiry can be found at: http://www.hrlc.org.au/content/review-of-the-victorian-charter-of-human-rights/.

Ombudsman Victoria investigation into prisoner access to health care

The Victorian Ombudsman presented a report on prisoner access to health care to Parliament on 29 August 2011.

The report noted that Victorian prisoners suffer poor health, with a significantly higher incidence of mental health problems, hepatitis, sexually transmitted diseases and hospitalisation.

The report notes that some of the recommendations from the Ombudsman’s 2006 report Conditions for Persons in Custody had not been implemented. The Ombudsman noted the following shortcomings:

• there is no comprehensive prison communicable disease policy;
• Opioid Substitution Therapy (OST) programs are under-resourced;
• treatment for hepatitis C is only provided in three of the 14 Victorian prisons; and
• prophylactics such as condoms are not made available.

Prison OST programs are severely overburdened. Port Phillip Prison initially was contracted to provide 135 daily OST places, but treats on average 226 prisoners daily. The Melbourne Assessment Prison’s OST program was set up to treat 40 prisoners per day but was serving 106 prisoners daily.

In the field of mental health, 28 per cent of male prisoners have diagnosed conditions. At Port Phillip Prison there is a three month waiting period to access treatment. Mental health services for male prisoners are significantly worse than for female prisoners – there is one psychiatric bed for every 16 female prisoners but only one psychiatric bed for every 88 male prisoners.

Condoms are provided in men’s prisons in NSW, the ACT, Western Australia and South Australia, but not in Victoria. The prison officer union has resisted providing condoms.

The Ombudsman notes that medical assessments of prisoners (particularly vital because of the lack of alternative medical treatment for prisoners) sometimes have to be conducted in as little as five to ten minutes. Prisoners can have complex medical histories.

Male prisoners requiring diagnostic and treatment services must be either transported to an external location or treated at Port Phillip Prison’s St Johns unit. The Ombudsman found that Corrections Victoria did not provide sufficient resources to transfer prisoners to and from appointments. Elsewhere in Australia medical transports are provided by independent bodies, reducing the burden on prison staffing.

A large number of male prisoners refuse medical treatment rather than being transferred to Port Phillip Prison. Reasons for this reluctance include transfer difficulties, fear of maximum security prisoners, loss of places in prison employment and work programs and not wanting to be imprisoned in a maximum security prison after being classified as a lower security risk elsewhere. One doctor said that prisoners would literally rather die than go to Port Phillip Prison.

The Ombudsman raised concerns with the security and confidentiality of prisoner health records. The Ombudsman also made recommendations to improve prisoner access to the Health Services Commissioner. Some long delays were reported where the Health Services Commissioner and Justice Health (a unit within the Victorian Department of Justice) were asked to investigate a complaint.

The Ombudsman notes that prisoner medical care facilities have not kept up with the growth of the prison population.

In total the Ombudsman made 24 recommendations. The report can be found online here.

Richard Plunkett is a Solicitor at DLA Piper

Tut Nyal inquest raises concerns about suicide risk

Tut Nyal was just a teenager when he escaped the civil war in Sudan and arrived in Australia as a refugee. Sadly, Mr Nyal died a decade later in a Silverwater prison cell, at the age of 26. His was a tragic ending to a difficult life.

Earlier this month, the NSW Deputy State Coroner found that Mr Nyal died on 17 March 2009 as a result of actions Mr Nyal took to end his own life.

The Public Interest Advocacy Centre (PIAC) represented two members of Mr Nyal’s family at the Coronial Inquest into Mr Nyal’s death.

“From the family’s perspective, Corrective Services NSW failed to take proper care of Tut Nyal,” said PIAC Solicitor Peter Dodd.

“Tut Nyal was placed in the wrong cell at Silverwater. This caused a delay in finding him and Tut was dead by the time he was discovered,” Mr Dodd said.

The Coroner said it was not possible to determine whether Mr Nyal might have been found sooner and