The HRLRC has prepared a comprehensive submission, Towards a Tasmanian Charter of Human Rights, which recommends that a Tasmanian Charter have the following key features:

• The Charter should promote a dialogue about human rights between parliament, the executive, the courts and the community.  (The Proposed Model is a dialogue model.)
• The Charter should only recognise and protect the human rights of human beings.  (The Proposed Model only protects the rights of human beings.)
• The Charter should enshrine all civil, political, economic, social and cultural rights recognised by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.  (The Proposed Model does not adequately enshrine economic, social and cultural rights.)
• The Charter should balance rights, responsibilities and other interests.  It should recognise that certain rights are absolute, such as the right to protection from torture and cruel, inhuman or degrading treatment.  All other human rights should be subject to such reasonable limits as can be demonstrably justified in a free and democratic society.  (The Proposed Model provides appropriately for limitations of human rights.)
• The Charter should establish robust pre-legislative human rights scrutiny mechanisms.  New bills introduced into parliament should include a statement as to their ‘human rights compliance’ and a Joint Committee on Human Rights should review the human rights compatibility of all bills.  (The Proposed Model includes Statements of Compatibility but does not establish a Joint Parliamentary Committee.)
• The Charter should bind ‘Tasmanian public authorities’, including Ministers, bodies created by Tasmanian laws and undertaking public functions, and private entities that perform public functions on behalf of Tasmanian public authorities.  (The Proposed Model binds bodies ‘funded or controlled’ by government, but it should bind all bodies who ‘exercise functions of a public nature’ on behalf of the government.)
• The Charter should require that public authorities act compatibly with rights and give proper consideration to human rights in decision making.  (The Proposed Model requires public authorities to act compatibly, but only provides a limited requirement for the proper consideration of human rights.)
• The Charter should require courts to interpret all Tasmanian law compatibly with human rights, but only so far as is possible consistent with statutory purpose.  The Act should not empower courts to invalidate legislation.  (The Proposed Model does both these things.)
• Where legislation cannot be given a human rights-consistent interpretation, the Supreme Court of Tasmania should have the exclusive power to make a Declaration of Incompatibility.  Such a declaration would not affect the validity of the legislation but would require that parliament reconsider that legislation within a specified period.  The decision as to whether to amend, repeal or leave the legislation untouched would be entirely a matter for parliament.  (The Proposed Model provides for this dialogue between the courts and parliament.)
• The Charter should provide people with effective judicial and non-judicial remedies where their human rights are breached by a Tasmanian public authority.  There should be a stand alone cause of action and all relevant relief, including compensation, should be available.  (The Proposed Model does not contain a stand alone cause of action and expressly states that damages will not be available.  It currently has a confusing regime of judicial and non-judicial remedies.)
• The Charter should contain recognition of the human rights of Aboriginal People in the Preamble, in particular their distinct role and place as the First Peoples of Tasmania.  (The Proposed Model does not currently include this reference.)

The HRLRC further recommends that the Tasmanian Charter be accompanied and complemented by a comprehensive program of human rights education, both for the public and community sectors, and that legal and advocacy services be adequately resourced to enable people to understand and vindicate their human rights.

The Bill: requires civil litigants to take genuine steps to resolve disputes before legal proceedings are instituted in the Federal Court or the Federal Magistrates Court; sets out the powers of court in relation to the genuine steps requirements and awarding costs; and provides that certain categories of legal proceedings are excluded proceedings.

The HRLRC and HPLC consider that the Bill contains important measures for encouraging the focused identification of issues in dispute between parties and, in turn, the early resolution of disputes and potential avoidance of costly litigation.  However, while these are important purposes, they must be balanced against an individual’s access to justice and right to a fair hearing.

This submission highlights potential risks faced by individuals involved in legal disputes that may result from the operation the Bill. Specifically, the HPLC and HRLRC consider that the fundamental right to a fair hearing must guide the content and operation of the Bill.

The major recommendation of this submission is that the provisions contained in the Bill must ensure that right to a fair hearing is afforded to all individuals, including potential parties to a proceeding. The civil justice system must operate in a way that does not exclude individuals from being able to access justice on an equal basis with others. This includes ensuring that no individual is disadvantaged prior to instituting proceedings.

The joint submission:

• welcomes the President’s recognition of the importance of the right to a fair hearing and the role that the Tribunal plays in protecting the right;
• recommends that specific reference be made to the Charter of Human Rights and Responsibilities Act 2006 (Vic) and that the Practice Note should clarify the Charter’s application and operation;
• outlines the content of the right to a fair hearing;
• highlights the importance of particular aspects of the right, such as access legal advice and representation and rights of procedural fairness, for marginalised and disadvantaged individuals and groups; and
• encourages the inclusion of information that details the practical obligations encompassed by the right and how that relates to the effective and efficient operation of the Tribunal.

On 29 September 2010, VCAT published its Practice Note on the Fair Hearing Obligation, which incorporated important aspects of the joint HRLRC and PILCH submission, including:

• the general duty of the Tribunal to ensure a fair hearing pursuant to section 24 of the Victorian Charter; and
• the particular responsibility that Members have to self-represented litigants in order to ensure a fair hearing.

A copy of the VCAT Practice Note is available at http://www.vcat.vic.gov.au/CA256902000FE154/Lookup/VCAT_Practice_Notes/$file/practice_note_vcat%20_3.pdf.

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

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

The report was submitted to the UN Human Rights Council in Geneva on 12 July 2010.

Further information on Australia’s review under the UPR process is available at www.hrlrc.org.au/content/topics/international-human-rights-mechanisms/universal-periodic-review-of-australia-in-february-2011/.

The submisssion of the Australian Human Rights Commission for the UPR is at http://www.humanrights.gov.au/upr/index.html.

Amnesty International and the Aboriginal and Torres Strait Islander Legal Services of Australia have also made NGO submissions on Australia for the UPR.

The Australian Government report for the UPR is at www.ag.gov.au/www/agd/agd.nsf/Page/Humanrightsandanti-discrimination_InternationalHumanRights_UniversalPeriodicReview. 

The Human Rights Law Resource Centre’s Submission to the Access to Justice Inquiry analyses and discusses the Terms of Reference with particular reference to the right to a fair hearing, as enshrined in art 14 of the International Covenant on Civil and Political Rights.  The right to a fair hearing is a fundamental human right, is instrumental to the effective protection of all other human rights, and must be central to any discussion of access to and administration of justice.

Following the introduction of similar ‘right to fair hearing’ provisions in charters of human rights in other jurisdictions (in particular in the United Kingdom and state jurisdictions such as Victoria and the Australian Capital Territory), an analysis of the jurisprudence developed in these jurisdictions is useful for determining the content of the right to a ‘fair hearing’ and evaluating the implications for access to justice in Australia.  

Accordingly, through a discussion and analysis of the content of the right to a fair hearing, this submission aims to assist in guiding potential reform relating to the following Terms of Reference the subject of the Inquiry:

• the ability of people to access legal representation;
• the adequacy of legal aid;
• the adequacy of funding and resource arrangements for community legal centres;

and to a lesser extent:

• the cost of delivering justice;
• the timeliness of judicial decisions; and
• measures to reduce the length and complexity of litigation.

The discussion also touches on issues that are relevant to:

• the procedure for appointment and method of termination of judges;
• the term of appointment of judges; and
• the appropriate qualifications of judges.

The Centre, together with the Public Interest Law Clearing House, provided a Joint Submission to the Vexatious Litigants inquiry outlining that the current vexatious litigant laws under section 21 of the Supreme Court Act 1986 (Vic) strike the correct balance between the right to access the courts and the need to protect other parties and the justice system from vexatious litigation.

The submission also suggested that the underlying issue of the vexatious litigant debate stems from the increase of self-represented litigants due in part to restrictive legal aid guidelines based on insufficient funding in key areas of legal assistance.

PILCH and the HRLRC recommendations included the following:

• attempts to broaden these laws should be treated with caution and ensure that rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) are adequately protected, particularly the right to a fair hearing and equal access to the courts;
• the provision the of comprehensive and ongoing training to Judges and court staff in relation to dealing with self represented litigants, including those who have mental health issues, are difficult or vexatious; and
• an increase in government funding for legal aid assistance, particularly legal advice at the preliminary stage, as well as funding to increase legal resources made available to self-represented litigants at the various courts and tribunals.

General Comment No 32 will be an important source of guidance on the interpretation and application of s 24 of the Victorian Charter of Human Rights, which enshrines the right to a fair hearing, and s 25, which guarantees various rights in criminal proceedings.

The Centre is pleased and proud that the General Comment incorporates a number of recommendations made in the Centre’s submission on the draft General Comment in January 2007.

Specifically, consistently with the Centre’s recommendations, General Comment No 32 provides that:

• The right of access to courts and tribunals and equality before them is not limited to citizens of States parties, but must also be available to all individuals, regardless of nationality or statelessness, or whatever their status, whether asylum seekers, refugees, migrant workers, unaccompanied children or other persons, who may find themselves in the territory or subject to the jurisdiction of the State party. [GC para 9, HRLRC submission paras 11.1-11.4]
• The principle of equality between parties applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party. [GC para 13, HRLRC submission paras 5.1-5.2]
• In exceptional cases, equality between parties might require that the free assistance of an interpreter be provided where otherwise an indigent party could not participate in the proceedings on equal terms or witnesses produced by it be examined. [GC para 13, HRLRC submission paras 8.1-8.2]
• Where delays in legal proceedings are caused by a lack of resources and chronic under-funding, to the extent possible supplementary budgetary resources should be allocated for the administration of justice. [GC para 27, HRLRC submission para 6.3]

The submission considers the impact that the Victorian Charter, specifically the right to a ‘fair hearing’ enshrined in section 24, is likely to have on civil justice in Victoria.

The submission:

• provides a summary of international and comparative human rights law and jurisprudence to assist in determining what may be considered to be the minimum requisite elements of the right to a ‘fair hearing’ in civil proceedings; and
• discusses the impact that the right to a ‘fair hearing’ in the Victorian Charter is likely to have on the civil justice system in Victoria by reference to experiences in other jurisdictions, including the UK and the ACT.

The submission contains a number of recommendations designed to ensure that civil justice policy, procedure and practice in Victoria is compatible with human rights.

On 2 August 2007, the Centre made a Submission in Response to the Commission’s Draft Civil Justice Reform Proposals.

On 6 September 2007, the Centre made a Submission in Response to the Commission’s Second Exposure Draft Civil Justice Reform Proposals.

The submission sets out:

1. the distinction between amici curiae, interveners and other non-parties;
2. the benefits of and potential disadvantages associated with amici curiae participating in proceedings;
3. the current law in Australia and position in Victoria with respect to amicus curiae applications;
4. problems with the current position in Victoria with respect to amicus curiae applications; and
5. recommendations for reform.

The submission focuses on the rules and procedures for amicus curiae applications brought by public interest organisations (an area in which the HRLRC and BDW have had recent experience).  However, many of the recommendations contained in the submission are also relevant to interveners.

In November 2006, a group of eminent Australian lawyers prepared an Opinion about the continued detention of David Hicks in Guantanamo Bay and his proposed trial by a Military Commission.  The Opinion has potentially alarming implications for the Federal Government and its Ministers.

In essence, the lawyers have concluded:

• that the US proposal to try David Hicks before a freshly constituted Military Commission contravenes Article 3 of the Geneva Conventions in that such a trial is not capable of being regarded as a fair trial at international law;
• that the conduct of such a trial by the Military Commission is also inconsistent with the recent decision of the US Supreme Court in Hamdan, which declared a previous such Commission unlawful;
• that such a trial would be in contravention of the Australian Criminal Code;
• that government ministers are subject to the Australian Criminal Code; and
• that to knowingly counsel or urge that such a trial be conducted before a Military Commission constituted under the relevant US legislation would constitute a war crime under the Australian Criminal Code.

In substance, the lawyers say that such a trial is in breach of the Geneva Conventions because:

• The Military Commission is not an independent and impartial tribunal. It will be composed of officers appointed by the President through his delegate, the US Secretary of Defense, and will be serving under the command of and at the pleasure of those individuals.  The Secretary of Defense controls the manner in which trial counsel and military defense counsel are appointed and also administers the prosecuting authority.
• The US Secretary of Defense can control issues such as the law to be applied and the type of evidence that will be admitted. Further, evidence may be admitted even where it was obtained by moral or physical ‘coercion’.
• The accused may never be made aware of the evidence that has been admitted against him as it may be withheld for security reasons and may include hearsay evidence.
• The US Secretary of Defence, as part of the Executive, also controls the detention of prisoners being tried.
• The procedures deny an accused person any adequate opportunity to present his defence. In addition, the lawyers say that such a trial has been excessively delayed and violates David Hicks’ right to a trial without unreasonable delay and that his continued detention also violates international law.

The Opinion has been signed by the Hon Alastair Nicholson AO RFD QC (Former Judge Advocate General of the ADF, Honorary Professorial Fellow, Department of Criminology, University of Melbourne); Peter Vickery QC (Special Rapporteur, International Commission of Jurists, Victoria); Professor Hilary Charlesworth (Professor of International Law and Human Rights, ANU); Professor Andrew Byrnes (Professor of International Law, Faculty of Law, UNSW); Gavan Griffith AO QC (Solicitor-General of Australia 1984 – 97); and Professor Tim McCormack (Australian Red Cross Professor of International Humanitarian Law, University of Melbourne).

The Opinion has been delivered to the HRLRC and to the Law Council of Australia.  The Law Council of Australia has supplied the Opinion to the Federal Attorney-General, the Hon Philip Ruddock MP.  The HRLRC is now undertaking a factual investigation and analysis of material to form a view as to whether, in fact, the conduct of any person or persons in relation to David Hicks may amount to a war crime.  Contravening conduct could lead to prosecution in Australian courts under the Australian Criminal Code or before the International Criminal Court under the Rome Statute.