Past Issues

HRLRC Bulletin Vol 45 – January 2010

This is the January 2010 edition of the Human Rights Law Resource Centre Bulletin.

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

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

Opinion pieces on the right to health in Australia (by UN Special Rapporteur on the Right to Health, Anand Grover) and on the protection of social and economic rights under an Australian Human Rights Act (by Dr Katharine Young and Renuka Thilagaratnam of the ANU)
News about the HRLRC’s human rights law commendation, the Australian Government’s human rights grants scheme, a major UK parliamentary committee report on business and human rights, an online consultation being undertaken by the UN Special Representative on Business and Human Rights, and a new General Comment on the Right to Culture
Updates on National Charters of Rights, including a call to ACT NOW! to promote the enactment of an Australian Human Rights Act, and details of a legal opinion from senior counsel on the constitutionality and justiciability of social and economic rights under an Australian Human Rights Act
Updates on the Victorian Charter of Rights, including details of the exemption of Parole Boards from the Charter, an analysis of recent Statements of Compatibility, and the referral of a question as to the interface between the Charter and Commonwealth law to the Supreme Court
Victorian Charter case notes, including from the Supreme Court (the operation of the Charter’s transitional provisions) and the Victorian Civil and Administrative Tribunal (freedom of information and the security of prisons)
Comparative law case notes on significant recent human rights decisions from Canada (homelessness and the right to life and security, equality and the exclusion of female ski jumpers from the Olympics), South Africa (right to municipal services and procedural fairness), the European Court of Human Rights (deportation of non-nationals and the right to family life, custody of children and the right to family life) and the UK (asylum seekers and the right to be free from destitution in a third state, the determination of who is a child in asylum applications, and balancing freedom of expression and the right to privacy)
Information about the Centre’s policy work, including in relation to Australian foreign policy and human rights, a human rights-based approach to electoral reform, and Australia’s judicial system and the role of judges
Updates on the Centre’s casework and litigation, including in relation to the takeover of Alice Springs Town Camps, access to healthcare and humane treatment in detention, and access to CCTV footage of an alleged prison assault
Details of forthcoming human rights seminars and events, including new courses at the RMIT Australian Centre for Human Rights Education
Information about useful human rights resources, including the latest edition of the Alternative Law Journal
Information about human rights jobs, including a range of human rights lawyer positions with the Victorian Government Solicitor’s Office
An outline of a new US human rights agenda for the 21st century by US Secretary of State, Hillary Clinton
‘If I were Attorney-General’ by James Farrell, Manager of the PILCH Homeless Persons’ Legal Clinic

Opinion

Australia and the Right to Health: Indigenous Health and Access to Healthcare in Detention

The UN Special Rapporteur on the Right to Health, Anand Grover, concluded his 12 day mission to Australia on 4 December 2009. The HRLRC convened NGO consultations with the Special Rapporteur in Melbourne (25 Nov) and Sydney (30 Nov) and prepared a major briefing paper on the Right to Health in Australia in advance of the mission.

The mission focused on two primary issues: Indigenous health and access to healthcare in detention. Below is an edited extract of the Special Rapporteur’s ‘Preliminary Observations and Recommendations’ delivered in Canberra on 4 December.

“The focus of this mission was on two main issues – Indigenous health and access to healthcare in detention establishments, including those for asylum-seekers, refugees and prisoners. I looked at these issues through the prism of the right to health. But that was one of my major challenges as there is no legal right to health in Australia.

Australia’s failure to incorporate international human rights standards enshrined in treaties to which it is a party into domestic law remains an issue of great concern for me, as those rights need to be enforceable at the national level. I make note of the recent National Human Rights Consultation process, culminating in a report which recommended the increased recognition of human rights within Australia. I urge the Government to take necessary steps to incorporate international human rights standards into domestic legislation, all of which should be justiciable, including economic, social and cultural rights.

The health of Australia’s refugee and asylum seeker population in detention has been a significant concern for many years. Some of the Government’s policy changes surrounding immigration detention, particularly around frequency of review of detention, are to be commended. The average lengths of time for which individuals are detained have significantly decreased, diminishing the inherent risk of mental illness associated with indefinite detention. Removal of temporary protection visas has also gone some way towards ameliorating uncertainty within this population. Provision of health services in mainland immigration detention centres appears generally satisfactory.

However, I would like to emphasize my overriding concerns regarding the situation of persons in detention centres: the fact that detention remains mandatory, with no maximum limits on duration of stay, and that there are no binding legal standards that must be met in providing services. These factors impact negatively on the status of health of persons in detention.

Moreover, the excising of Christmas Island under the Migration Act, whereby refugee claims are determined by a non-statutory process, means that Island detainees lack the same rights to judicial review as their mainland counterparts. Although processing time on Christmas Island has decreased, major problems remain concerning the accessibility and appropriateness of the facility. These factors, particularly the logistical difficulties associated with airplane access, make rendering health and other services extremely challenging and present a significant obstacle to ensuring on-going monitoring by non-governmental and independent stakeholders.

The health of Australia’s prison population was also an issue of concern to me, including in relation to the provision of primary health care, resourcing of health promotion projects, and the provision of appropriate services to Aboriginal and Torres Strait Islanders. I recommend that the Government invests additional funds to ensure sustainable delivery of primary healthcare services. Further, there needs to be an increased and proactive focus on health promotion activities as well harm reduction interventions, such as needle and syringe exchange programmes, to address the preventive health needs of inmates of all cultural backgrounds.

Individuals with mental illnesses are overrepresented in all types of custody. The deinstitutionalization of mental health services over recent times is a welcome development in healthcare, but inadequate resourcing of alternative services has resulted in a shift of individuals with mental illnesses to the nation’s prisons.

Indigenous populations are also vastly overrepresented in the prison population. Diversion programs, sentencing policies and criminal laws must all be considered when broadly assessing the health of Aboriginal and Torres Strait Islander populations, as incarceration has wide-ranging detrimental health effects.

Whilst Aboriginal and Torres Strait Islanders are overrepresented in the prisoner population, they are underrepresented in the prison staff cohort; this should be addressed through targeted programs that recruit and engage Aboriginal and Torres Strait Islander health workers and correctional staff in a culturally appropriate manner.

Knowing Australia to be a developed, prosperous country, I was moved by the stories told to me by indigenous communities, the living conditions I saw, and the extent of preventable disease and health-related disability I witnessed among those of Aboriginal and Torres Strait Islander descent. The right of a significant proportion of Australia’s Indigenous populations to the highest attainable standard of physical and mental health is being violated. Basic needs, such as adequate housing, safe drinking water and sanitation and access to education are not being met.

Including the Indigenous population in policy and decision–making processes is necessary to build relationships which would ensure genuine protection of their interests, while securing their respective cultural identities and self-determination, and restoring respect and dignity. I note that the Government has signaled an intention to establish the National Congress of Australia’s First Peoples, which represents one mechanism by which this engagement could occur. However, I would stress the importance of legislative guarantees, or other such mechanisms, to ensure that the opinions of any such body must be taken into account.

Initiatives such as this are a welcome development, and represent major progress – but other initiatives in recent times have proved not as successful. The Northern Territory Emergency Response has unfortunately undermined some of this progress in efforts towards reconciliation, as communities describe the NTER as paternalistic, disempowering and racially motivated. Furthermore, the NTER failed to meet basic standards of a rights-based approach to health, such as the development of a transparent plan with clear benchmarks and indicators, participation, the meaningful engagement of communities and the establishment of mechanisms for monitoring and accountability. I welcome the Government’s decision to reinstate the Racial Discrimination Act in the Northern Territory, but it is of utmost importance that such changes are accompanied by the immediate implementation of appropriate measures.

In order to realize the right to health for Indigenous communities, there is a need for significant, ongoing commitment and investment in a combination of both symbolic and practical measures to empower Indigenous communities. I welcome the recent, unprecedented investment of $1.6 billion for Indigenous health, the Government’s support for an Aboriginal and Torres Straits Islanders’ Healing Foundation and the announcement of a new co-operative framework between community-controlled health services and the Federal and Territory governments, with a view to increasing Indigenous peoples’ control over planning, development and delivery of primary health care. This approach further enhances the commitments that Australian Governments have already made to achieve Indigenous health equality.

It is of utmost importance that sufficient funding is allocated to Aboriginal community controlled health services which have a proven record of delivering health services to Aboriginals and Torres Strait Islanders. Where mainstream services provide care to Indigenous communities, capacity and cultural competence needs to be upgraded.

In accordance with a rights-based approach I would like to highlight the need for a long-term national plan of action with clear targets, benchmarks and indicators to evaluate progress and guide State and Commonwealth priorities and actions. Such a plan would necessarily include addressing underlying determinants of health (such as adequate housing and access to safe water and sanitation), social determinants of health, as well as racism. Undivided support and implementation of the Close the Gap Campaign is crucial to ensuring capacity building and empowerment of Indigenous communities to take a leadership role in realizing the right to health for all Australians.

During my mission, I met many people of good will and incredible commitment, genuinely concerned about the human rights of all Australians. However, this mission has confirmed for me that the realization of the right to health of some Australians, especially those in detention and Aboriginal and Torres Strait Islanders remains a significant challenge to the nation. Guaranteeing human rights protections through supportive legal and policy frameworks alongside practical, targeted interventions that place empowerment and meaningful community engagement at their centre are necessary to ensure the right to health for all Australians.”

Anand Grover is the UN Special Rapporteur on the Right to Health. The Special Rapporteur will present his final report on the mission to Australia to the UN Human Rights Council in June 2010.

The Brennan Report’s Unanswered Question: How to Protect Economic and Social Rights in a Dialogue Model

On Human Rights Day December 10 last year, the National Human Rights Consultation was launched. One year later, we await with anticipation the Federal Government’s response to the Brennan committee report which was issued after that consultation. Unfortunately, we may be waiting on a half-measure.

The biggest question is whether the Government will adopt a human rights Act, as the Brennan committee proposes. The report suggests that economic and social rights, as well as civil and political rights, be listed in such an Act. It reflects the fact that Australians had put, at the top of their list, rights to housing, health care and education.

Across cities and towns, websites and roundtables, the Brennan committee heard personal reports of how such rights are not sufficiently protected. And it heard Australians point out that that access to basic amenities (water, food, clothing, shelter), basic health care and education are just as important as civil and political rights (to a fair trial, for example, or to vote).

Yet the Brennan committee’s report rises only halfway to the challenge. While it recommends that economic and social rights be listed as rights for all in Australia, it fails to accord economic and social rights the protection it recommends for other human rights. In the face of serious stories of deprivation, and the institutional responses that their seriousness demands, the report does not begin to examine how such rights could be protected in anything more than symbolic terms.

For example, the committee’s recommendations are curiously incoherent in relation to the work of federal public authorities. Ministers, public servants, and government contractors must give proper consideration to economic and social rights when making decisions. But, unlike the role given to civil and political rights, there is no requirement that public authorities act consistently with economic and social rights in the human rights Act proposed. This suggests that the process might become an exercise in lip service.

The Brennan committee has also downgraded the role of economic and social rights when it comes to protecting human rights in the courts. First, it has recommended that judges not be given powers to hear economic and social rights complaints. This was based on the tenor of the advice of the Commonwealth Solicitor-General, Stephen Gageler SC, who stated that judges are not capable of interpreting and enforcing certain economic and social rights because they do not ”involve the application of criteria or standards that are sufficiently definite”.

Yet in countries with legal systems similar to Australia, judges do have the capacity to make determinations about the obligations that flow from economic and social rights. If someone is rendered homeless by government policy in South Africa, for example, they may seek a declaration in court as to whether their right to housing has or has not been respected. This does not mean that the complainants are given housing on demand, but only that the court examines whether the government has acted reasonably.

If someone is denied access to health care in Canada, courts may ask whether there is something in the government’s policy that is actively obstructing the delivery of basic health care. If someone is denied access to education in Britain, the courts might ask a similar question. Or they might decide that the denial is justified because of other priorities on the part of government. These determinations fit a dialogue model for enforcing human rights that is, that courts do not substitute their own decision, but instead act as a backstop to bring the matter to the attention of the elected branches.

The Brennan committee itself has supported a dialogue model for human rights, but has suggested that it apply only to civil and political rights. Second, the Brennan committee has recommended that courts be prevented from considering economic and social rights when interpreting federal laws consistently with the proposed human rights Act. (Oddly, the committee alternatively recommends economic and social rights be included in the Acts Interpretation Act).

The recommendation as to the interpretive effect of economic and social rights in the proposed human rights Act is a deeply troubling aspect of the unwillingness to treat economic and social rights on a par with civil and political rights. It is troubling because it will leave the poor and vulnerable in an even worse position than before the consultation. This recommendation effectively ties the hands of judges who are currently free under the common law to consider Australia’s obligations with respect to economic and social rights. If judges cannot even consider economic and social rights when interpreting other rights, their decisions will be skewed.

For example, if a bank exercises a power of sale under a mortgage, and the mortgagor goes to court requesting that other assets be sold off before the family home, it might be relevant for the court to consider the importance of the right to housing, as the Victorian Supreme Court recently did. And if a judge is required to interpret the right to humane treatment for those in detention, which is supported under the proposed human rights Act, it will help the judge to have the benefit of jurisprudence on the right to health care.

In Australia, the Brennan committee failed to consider these examples. When we pause to reflect today on the future of human rights in Australia and whether that future includes a human rights Act, we need to consider how we might include a fairer model of protection for economic and social rights.

Dr Katharine Young is a recent graduate of Harvard University, and is currently research fellow at ANU’s Regulatory Institutions Network. Renuka Thilagaratnam is also a research fellow at the ANU network. This article first appeared in The Canberra Times, 10 December 2009

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News

HRLRC Receives High Commendation on Human Rights Day

The Human Rights Law Resource Centre was conferred with a High Commendation at the annual Human Rights Medal and Awards Ceremony held by the Australian Human Rights Commission on 10 December 2009. The citation stated that the Centre was recognised for its ‘efforts to overcome discrimination and promote equality through the practice of law’ and as an ‘organisation which consistently demonstrated an unreserved commitment to the protection and promotion of human rights in Australia’.

The prestigious Australian Human Rights Medal was awarded to Stephen Keim SC for his outstanding and long-term involvement in ‘many cases aimed at furthering the human rights of individuals and groups such as prisoners, refugees, people with disabilities and people experiencing discrimination – work he often undertook on a pro-bono basis’.

The Australian Human Rights Law Award was made to Gregory McIntyre SC, who has been involved in many leading Indigenous rights cases for over three decades.

Australian Human Rights Grants Scheme Doubled and NGO Recipients Announced

On 10 December 2009, the Australian Foreign Minister, Stephen Smith, announced nearly $3 million of funding through the Human Rights Small Grants Scheme for projects that promote and protect human rights across Asia, the Pacific, Africa, the Middle East, Latin America and the Caribbean. ‘In accordance with Australia’s strong support for the vital work that human rights organisations do around the world, funding this year for the scheme has been doubled,’ Mr Smith said. ‘The geographic scope of this year’s scheme has been extended to include Africa, Latin America and the Caribbean, reflecting Australia’s strong commitment to engagement with the world and the universality of human rights’.

NGO projects funded through the scheme relate to issues including:

the land rights of internally displaced people returning to the north of Sri Lanka;
human trafficking of women and children in Indonesia;
children’s rights in the Solomon Islands;
the spread of HIV/AIDS in Nigeria; and
women’s rights in the Palestinian Territories.

Activities funded through the scheme include human rights monitoring and reporting, education, capacity building, policy development, advocacy and community empowerment.

For a full list of projects funded, see http://www.foreignminister.gov.au/releases/2009/fa-s091210.html.

Philip Lynch is Director of the Human Rights Law Resource Centre

UK Human Rights Committee Calls for International Agreement and Innovative Local Initiatives on Business and Human Rights

The UK Joint Parliamentary Committee on Human Rights has published a major report calling on the UK Government to develop a comprehensive strategy on business and human rights based on the ‘respect, protect, remedy’ framework of the UN Special Representative on Business and Human Rights.

The report outlines a range of initiatives and measures that the UK should take at the international and national levels to ensure that business respects and promotes human rights.

At the international level, the Committee recommends that ‘the UK play a leadership role in the global debate’ on business and human rights, including through the development of an international agreement. While recognising that an international agreement on business and human rights is unlikely in the near future, the Committee states that:

the impact of business on human rights is a global issue that ultimately requires a global solution. We are concerned that reluctance by states to take unilateral action coupled with failure to commit to an international solution will mean that little progress is made. We believe that an international agreement should be the ultimate aspiration of any debate on business and human rights.

At the international level, the Committee also calls on the Government to continue to support the mandate of the UN Special Representative, to ‘encourage UK businesses and civil society to engage with his work’ and to work jointly to on a ‘regional level and globally to agree a consistent approach to business and human rights’.

At the domestic level, the Committee expressed its disappointment at the Government’s reluctance to develop unilateral local policy measures, stating that ‘international debate should not preclude innovative policies at home’. The Committee was also critical of the Government’s ‘undue priority to voluntary initiatives’. It recommends a range of local legislative and policy measures, including that the Government should:

develop and provide clear guidance tools for business on human rights issues;
use public procurement to ‘reinforce the responsibility of business to respect human rights’. It said ‘the Government has immense power as a purchaser and should take responsibility for human rights impacts in its supply chain’;
consider amending the Companies Act 2006 ‘to require companies to undertake an annual human rights impact assessment as part of the business review’ stating that ‘all responsible companies should conduct such an assessment as part of their human rights due diligence’;
adopt a particularly robust approach to business in conflict zones;
support socially responsible investment, including by ensuring that public authorities take a ‘socially and ethically responsible investment approach’; and
work closely with the UK’s national human rights institutions to develop a clear, positive strategy and guidance on business and human rights.

The report is available at http://www.publications.parliament.uk/pa/jt/jtrights.htm.

Philip Lynch is Director of the Human Rights Law Resource Centre

UN Special Representative on Business and Human Rights Opens Online Consultative Forum on Corporate Responsibility to Protect

In June 2008, after extensive global consultation with business, governments and civil society, the Special Representative of the UN Secretary-General (SRSG) on Business and Human Rights proposed a policy Framework to the UN Human Rights Council for managing business and human rights challenges. The Council was unanimous in welcoming the Framework.

The ‘Protect, Respect and Remedy’ Framework rests on three differentiated yet complementary pillars: the state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; the corporate responsibility to respect human rights, which in essence means to act with due diligence to avoid infringing on the rights of others; and greater access for victims to effective remedy, judicial and non-judicial.

The Council also extended the SRSG’s mandate by another three years to June 2011, tasking him with ‘operationalizing’ the Framework – that is, to provide ‘practical recommendations’ and ‘concrete guidance’ to states, businesses and others on the Framework’s implementation. To help him to do so under the Framework’s second pillar, the corporate responsibility to respect, the SRSG recently launched an online forum designed to gather views from all stakeholders as to the policies and processes companies may put in place to ensure that they respect human rights, as well as options for handling related dilemmas. The forum is accessible at http://www.srsgconsultation.org/.

The forum will remain in place through February 2010. Anybody can register to participate in the discussion and post comments. Recognizing that there are legitimate reasons why some cannot comment publicly, private correspondence can be submitted to moderator@srsgconsultation.org.

The forum is not intended to be an introduction to business and human rights or to the SRSG’s mandate. For more detail and background on the mandate, including information about the extensive consultations and research that led to the Framework, please visit the SRSG’s web portal at www.business-humanrights.org/SpecialRepPortal/Home.

Also of interest may be the SRSG’s recent presentation on extraterritorial jurisdiction to the EU Presidency Conference on Corporate Social Responsibility in November 2009. The address highlighted the SRSG’s views that extraterritorial jurisdiction is not a binary matter and that a range of options is available to states to encourage companies subject to their jurisdiction to respect rights abroad.

The presentation, available at www.reports-and-materials.org/Ruggie-presentation-Stockholm-10-Nov-2009.pdf, also included the SRSG’s preliminary observations from a recently commissioned study comparing the use of extraterritorial jurisdiction in various international regimes: anti-corruption, anti-trust, securities, the environment, and general civil and criminal jurisdiction. The study is exploring associated challenges and successes and how they might apply to the business and human rights domain. Its findings will be available in early 2010. It is also noteworthy that in a Statement released after the Conference, the EU Presidency endorsed the Protect, Respect and Remedy Framework and recommended that member states use it in deciding how best to manage the complex business and human rights agenda. That Statement is available at www.reports-and-materials.org/EU-Presidency-statement-Protect-Respect-Remedy-Nov-2009.pdf.

The SRSG will next present to the Human Rights Council in June 2010.

Vanessa Zimmerman is Legal Advisor to the SRSG (vanessa_zimmerman@hks.harvard.edu)

New General Comment on the Right to Take Part in Cultural Life

The UN Committee on Economic, Social and Cultural Rights has recently adopted General Comment No 21 on the Right to Take Part in Cultural Life (ICESCR, art 15(1)(a)).

The General Comment recognises that the ‘full promotion of, and respect for, cultural rights is essential for the maintenance of human dignity and for the positive social interaction between individuals and communities in a diverse and multicultural world.’ It characterises the right as a freedom which requires of the state ‘both abstention (ie, non-interference with the exercise of cultural practices and with access to cultural goods and services) and positive action (ensuring preconditions for participation, facilitation and promotion of cultural life, and access to and preservation of cultural goods).’

The right to take part in cultural life, which may be exercised individually or collectively, subsumes a right to: (1) participate in, (2) access and (3) contribute to culture. The General Comment defines ‘culture’ as a ‘broad, inclusive concept encompassing all manifestations of human existence’ encompassing, among other things, ‘ways of life, language, oral and written literature, music and song…religion or belief systems, rites and ceremonies, sport and games, methods of production or technology…environment, food, clothing and shelter, the arts, customs and traditions’.

The General Comment also deals with limitations on the right to take part in cultural life, setting out that ‘no one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope’. The Committee recognises that limitations on the right to culture may be necessary in certain circumstances, ‘in particular in the case of negative practices, including those attributed to customs and traditions, that infringe upon other human rights’. Any such limitations ‘must pursue a legitimate aim, be compatible with the nature of this right and be strictly necessary for the promotion of the general welfare in a democratic society’.

In addition to setting out the normative content of the right, the General Comment also discusses:

‘persons and communities requiring special protection’ to realise the right;
steps and measures necessary to promote cultural diversity;
the obligations of states, including general obligations, specific legal obligations, and international cooperation and assistance; and
implementation at the national level, including legislation and policies, indicators and benchmarks, and remedies and accountability.

The General Comment is available at www2.ohchr.org/english/bodies/cescr/docs/gc/E-C-12-GC-21.doc.

Philip Lynch is Director of the Human Rights Law Resource Centre

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National Charter of Rights Developments

ACT NOW! A Human Rights Act for Australia

The landmark Report of the National Human Rights Consultation, released by the Federal Government on 8 October 2009, recommends that Australia enact a comprehensive national Human Rights Act.

The Report also recommends a range of other measures to protect human rights in Australia, including strengthening the Australian Human Rights Commission, enhancing human rights education, improving parliamentary scrutiny of human rights, improving access to justice and addressing Indigenous disadvantage and exclusion.

The Government has announced that it will respond to the report ‘in the coming months. For people concerned with improved protection of human rights in Australia, the time to act is now! Please write to your local MP, senators, the Prime Minister, the Attorney-General and members of federal Cabinet.

For materials that may be helpful in writing an email or letter, including a letter to all parliamentarians by the HRLRC and a Briefing Paper on a Human Rights Act for Australia sent by the HRLRC to key Ministers and MPs, see www.hrlrc.org.au/content/topics/national-human-rights-consultation/act-now-a-human-rights-act-for-australia/.

Legal Opinion: Social and Economic Rights would be Constitutional and Justiciable under a Human Rights Act

On 8 October 2009 the National Human Rights Consultation Committee recommended that Australia enact a Human Rights Act. However, although the Consultation clearly demonstrated the right to adequate housing, health care and education are the ‘rights that matter most’ to Australians, the Committee further recommended that, if an Australian Human Rights Act enshrines social and economic rights, those rights should not be justiciable. This recommendation was based on an advice from Stephen Gageler SC (the Commonwealth Solicitor-General) and Henry Burmester QC which relevantly and briefly stated that there are constitutional problems with the entrenchment of ESC rights.

The Human Rights Law Resource Centre considers that all human rights are interdependent, mutually reinforcing and indivisible. We consider that an Australian Human Rights Act should enshrine social and economic rights and that both international law and Australian constitutional law clearly establish that such rights are justiciable and enforceable.

Consistent with this view, the Centre commissioned a Memorandum of Advice from Peter Hanks QC, Debbie Mortimer SC, Associate Professor Kristen Walker and Graeme Hill on the justiciability of social and economic rights under a Commonwealth Human Rights Act.

Contrary to the advice from the Solicitor-General, this advice clearly states that:

there is no necessary constitutional objection to including economic and social rights in any federal Human Rights Act;
economic and social rights are no more broadly expressed than civil and political rights, which are capable of being interpreted and applied in the exercise of federal judicial power;
decisions about social and economic rights may have implications for the allocation of budgetary resources, however the same is true for all human rights; and
it is an overstatement to say that ICESCR rights do not contain judicially manageable standards.

The opinion concludes that the real issue is whether economic and social rights can be appropriately expressed and the court’s role limited. So long as rights are framed so as to give them specific content, and the court’s role limited to a consideration of whether the government’s action was reasonable within the available resources (as under the South African constitution), social and economic rights are capable of being protected and promoted in Australian law.

In light of the findings of the Consultation as to the importance of ESC rights, Australia’s international obligations as to the interdependent protection and promotion of all rights, and the advice as to the constitutional justiciability of ESC rights, it is imperative that an Australian Human Rights Act enshrine all civil, political, economic, social and cultural rights and that such rights be justiciable and enforceable.

The Memorandum of Advice is available at www.hrlrc.org.au/content/topics/esc-rights/esc-rights-legal-opinion-on-justiciability-of-esc-rights-in-an-australian-human-rights-act-dec-2009/.

Emily Howie is a Senior Lawyer with the Human Rights Law Resource Centre

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Victorian Charter of Rights Developments

Parole Boards Exempted from Victorian Charter for a Further Four Years

On 15 December 2009, the Victorian Government passed new Regulations that declare the Adult Parole Board, the Youth Residential Board, and the Youth Parole Board (the ‘Parole Boards’) not to be ‘public authorities’ for the purposes of the Charter of Human Rights and Responsibilities. The effect of the Regulations is to allow the Parole Boards to continue to operate outside the regulation of human rights protections afforded by the Victorian Charter for a further four-year period until 27 December 2013. Previously, the Parole Boards had been exempted from the Victorian Charter by the operation of the Charter of Human Rights and Responsibilities (Public Authorities) Interim Regulations 2007, which are due to expire in December 2009.

The Regulatory Impact Statement (‘RIS’) for the Regulations outlines the underlying rationale for the continued exemption to be applied to the Boards, being that compliance with the Victorian Charter would require changes to the Parole Boards’ current practices and that these changes would have a potential negative impact on the operation of the Boards. Essentially, the RIS asserts that compliance with procedural fairness obligations will impose on the Parole Boards a more stringent decision making process, inhibit the flexibility of the Boards’ decision making and, consequently, undermine the effectiveness of the Boards in meeting their objectives.

On 26 November 2009, the HRLRC made a submission that the Parole Boards should not continue to be exempt from compliance with the Victorian Charter. In the Centre’s view, the human rights analysis contained in the RIS and rationale for continuing to maintain the Boards exempt from the Victorian Charter is misguided. Instead, compliance with the Victorian Charter would:

improve the decision making processes of the Boards;
enhance the confidence in the Boards’ decision making and thereby lead to an improved parole system; and
ultimately, result in improved outcomes and better opportunities for the rehabilitation of offenders and their reintegration into society.

The Centre’s submission is available at www.hrlrc.org.au/content/our-work/parole-boards-exempted-from-the-victorian-charter-for-a-further-four-years-dec-2009/.

Ben Schokman is a Senior Lawyer with the Human Rights Law Resource Centre

Supreme Court to Consider Interaction of Charter and Commonwealth Legislation

On 30 November, 2009, the County Court referred its first case under the Charter to the Supreme Court.

The case of Commonwealth Director of Public Prosecutions v Read involves an application by the Commonwealth Director of Public Prosecutions for a superannuation order under the Crimes (Superannuation Benefits) Act 1989 (Cth), seeking payment to the Commonwealth of the respondent’s employer superannuation contributions and interest accrued over many years as a member of the defence force. The application is made following earlier criminal proceedings in which the respondent was convicted, sentenced and served a term of imprisonment. The application is opposed by the respondent.

The respondent contends, amongst other things, that s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) requires the County Court to interpret the Crimes (Superannuation Benefits) Act 1989 (Cth), in a way that is compatible with human rights; in this instance the right not to be tried or punished more than once (s 26 of the Charter). The respondent argues that forfeiture of his superannuation constitutes double punishment which enlivens the Charter.

The applicant on the other hand, argues that the Charter only applies to interpretation of Victorian Acts, not Commonwealth Acts, by virtue of the definition of ‘statutory provision’ in the Charter and the definition of ‘Act’ in s 38 of the Interpretation of Legislation Act. It argues that s 79 of the Judiciary Act does not apply to ‘pick up’ the Charter as a surrogate Federal law in circumstances where a state court is interpreting a Commonwealth statute. The Crimes (Superannuation Benefits) Act 1989 (Cth) is, it is contended, clear and unambiguous. It does not require recourse to other laws to resolve the substantive issue in dispute. Further, s 26 of the Charter can only apply to criminal proceedings.

His Honour Judge Ross considered that a state statute may be applicable when interpreting a Commonwealth act and the Charter may form part of the adjudicative process and be directly relevant to the resolution of the matter before the Court. His Honour considered that a genuine question of law has arisen as to the application of ss 26 and 32(1) of the Charter to the Crimes (Superannuation Benefits) Act 1989 (Cth). Accordingly, His Honour has referred the question of law to the Supreme Court for consideration and determination in due course.

Anna Robertson is a barrister at the Victorian Bar

Statements of Compatibility under the Victorian Charter

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

Below is an analysis of recent significant Statements.

Severe Substance Dependence Treatment Bill 2009

The Severe Substance Dependence Treatment Bill 2009 seeks to establish a new system of civil detention and treatment for persons with severe substance dependence in circumstances where this is necessary as a matter of urgency to save the person’s life or prevent serious damage to the person’s health. The Bill repeals the Alcoholics and Drug-dependent Persons Act 1968 (Vic).

The Bill:

restricts the class of persons who are eligible for a detention and treatment order to those experiencing severe substance dependence, to the extent that they no longer have an ability to make decisions relating to their substance use and health;
details the process through which a Court may make a detention and treatment order, once a registered medical practitioner has certified that certain criteria are satisfied; and
defines the scope of a detention and treatment order.

The bill engages many rights under the Charter of Human Rights and Responsibilities Act 2006, including the right not to be subjected to treatment without full, free and informed consent (s 10(c) of the Charter), the right to freedom of movement (s 12), the right to privacy (s 13), the right to liberty and security of person (s 21) and the right to a fair hearing (s 24). The Statement of Compatibility also recognizes that the Bill may engage the right to be protected from discrimination on the basis of impairment, the right to life, the right to protection of families and children, and cultural rights.

Right not to be subjected to treatment without full, free and informed consent

Under the Bill, a person subject to a detention and treatment order may be examined or provided with treatment without their consent. This is inconsistent with s 10(c) of the Charter which prohibits treatment unless a person has given full, free and informed consent.

The Statement asserts that this limitation on the right under s 10(c) is reasonable because the Bill only applies to persons who are incapable of making decisions about their substance use and personal health, welfare and safety, and only alters consent relating to the limited type of treatment allowed under the Bill. The Statement points out that no less restrictive means are available to achieve the purpose of the limitation where the person is not in a position to consent.

However, in circumstances where a person subsequently becomes capable of consent, they may have to wait up to 48 hours for a Court to hear an application to revoke the order, despite no longer fulfilling the criteria of eligibility for that order.

Right to freedom of movement and right to liberty and security of person

The Charter provides that a person must not be deprived of his or her liberty except on grounds, and in accordance with the procedures established by law (s 21). A person also has the right to move freely within Victoria, and to choose when to enter or leave.

Under the Bill an order can be made for the detention and treatment of persons for up to 14 days in order to provide urgent treatment to save the person’s life or to prevent serious damage to the person’s health, which the Statement recognises is very important.

The Statement asserts that no less restrictive means are reasonably available to achieve the Bill’s purpose. However, the 14 day default detention period is arguably disproportionate (compared to seven days, with an option for extension, under the previous regime) given the cited evidence that medically supervised withdrawal commonly requires between seven and 14 days.

Emma Barton, solicitor, and Louise Brown, summer clerk, Mallesons Stephen Jaques Human Rights Law Group

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Victorian Charter Case Notes

Freedom of Information and Security of Prisons

Rogers v Chief Commissioner of Police [2009] VCAT 2526 (26 November 2009)

In Rogers v Chief Commissioner of Police, VCAT held that CCTV footage and audio tape used for the investigation of an incident that occurred in the Banksia Unit of HM Barwon Prison were exempt from disclosure under the Freedom of Information Act 1982 (Vic). VCAT ordered that the documents should not be released to the Applicant, Darren Rogers.

In reviewing the original decision of the Chief Commissioner of Police (‘CCP’) to deny access to the document, VCAT considered the ‘public interest’ arguments advanced on behalf of the Applicant in favour of release of the document in the context of human rights considerations regarding the transparency of investigation processes within prisons and the ill-treatment of prisoners.

Factual and Procedural Background

In the proceeding before Senior Member Davis, the Applicant sought access under the FOI Act to certain documents that contained evidence in relation to the investigation of an alleged assault (‘the incident’) that occurred in July 2007 when Mr Rogers was a prisoner in a High Security Unit in HM Prison Barwon.

Specifically, the Applicant claimed that after a heated exchange with two Prison Officers he fell forward from the door of his cell, stumbling because of the momentum. The Applicant claimed that he was then punched five or six times by one prison officer as the other prison officer wrapped his arms around the Applicant and steered him in to his cell.

Contrary to the evidence of the Applicant, the prison officers reported that when the Applicant was ordered to step in to his cell, the Applicant lunged toward one of the prison officers. Believing that the Applicant was going to assault him, one prison officer reported that he raised both hands and ‘made contact with his chest and head regions’.

After the incident, two incident reports were made by prison officers to the Prison Directorate, Corrections Victoria. In May 2008, the Applicant made a request pursuant to the FOI Act for any information, records, files or documents held by the Respondent in relation to its investigation the incident, including the brief of evidence submitted and considered by police.

Following a decision at internal review to release some documents, the Applicant confined his request to DVD security footage of the incident (Document 12), and an audio tape of a Victoria Police interview with a prison officer involved in the incident (Document 13) (together the ‘Disputed Documents’).

Submissions

The Respondent relied upon the following exemptions to argue that the documents were exempt from release under the FOI Act:

s 38 of the FOI Act – engaging secrecy provision in s 30(1)(a,(d),(e),(f) (g) of the Corrections Act 1986 (Vic.);
s 31(1)(d) of the FOI Act – disclose methods or procedures;
s 31(1)(e) of the FOI Act – endanger life or physical safety of persons engaged in law enforcement;
s 33(1) of the FOI Act – personal privacy; and
s 35(1)(b) of the FOI Act – in confidence.

The Applicant submitted that the exemptions claimed by the Respondent and the public interest override (pursuant to s 50(4) of the FOI Act) should be interpreted subject to the Charter of Human Rights and Responsibilities Act.

The Applicant submitted that he sought access to documents 12 and 13 to ensure that the incident was properly investigated pursuant to s 15 of the Charter (the right to freedom of expression, which subsumes the right to receive information). The Applicant also alleged that there had been a ‘failure by authorities to properly investigate the allegations of mistreatment’ and argued that this may amount to a breach of ss 10 and 22 of the Charter (the right to humane treatment in detention).

Decision

In summary, Senior Member Davis upheld almost all of the exemptions claimed by the Respondent.

The Senior Member ordered that the decision of the Respondent that the documents in dispute are exempt from disclosure under the FOI Act pursuant to s 31(1)(d) and (e) and s 38 of the FOI Act as it relates to s 30 of the Corrections Act be upheld.

Senior Member Davis held at paragraph 147 that disclosure of the documents would compromise the security of the public of Victoria:

It is clear to me that the s 31(1)(d) and (e) and s 38 [of the FOI Act] (as related to s 30 of the Corrections Act) exemptions are for the purpose of protecting security in prisons which in turn will affect the security of the public of Victoria. Put another way, if there was not the security in the prison system, the public of Victoria would be likely to suffer. Further, in DPP v Zierk [2008] VSC 184 (30 May 2008), Chief Justice Warren made it clear that there is a strong social need for material associated with an internal police investigation to remain confidential in the interests of proper and efficient functioning of police investigation and the instrumental role of Victorian Police in upholding the rule of law.

Senior Member Davis described the evidence of the Applicant as ‘inconsistent and unreliable’ and stated clearly in his decision that he preferred the evidence of the Respondent.

The Senior Member first considered the exemptions claimed under the FOI Act without reference to the Charter. He then applied the provisions of the Charter and interpreted the provisions of the FOI Act in accordance with those provisions of the Charter that he considered were applicable.

Consideration of the Charter

In relation to the Charter, the Applicant submitted that:

any decision of whether or not to grant access to the Disputed Documents must be considered in light of relevant human rights enshrined in Charter, namely the Applicant’s:
1. right to freedom of expression (s 15 of the Charter);
2. right to protection from cruel, inhuman or degrading treatment (s 10), which includes a requirement that incidents be properly investigated; and
3. right to humane treatment when deprived of liberty (s 22): and
denial of access to the Disputed Documents represents an unreasonable, unjustifiable and disproportionate impact on these rights of the Applicant.

Citing Kracke v Mental Health Review Board [2009] VCAT 646, Senior Member Davis made note of the Tribunal’s obligation under the Charter not to act in a way that is incompatible with the Applicant’s human rights nor to fail to give consideration to human rights. Senior Member David then (somewhat curiously and circularly) made a finding that in reaching its decision in this matter, the Tribunal had complied with its Charter obligations.

Sections 10 and 22: right to protection from cruel and inhuman treatment, right to humane treatment when deprived of liberty

Member Davis found no evidence to support the submission that the Applicant was tortured or treated or punished in a cruel, inhumane or degrading way. He also found nothing in evidence to conclude that a proper inquiry was not conducted in response to the Applicant’s complaint.

He went further at paragraph 112, saying: ‘in any event, these documents would not assist the Applicant even if the incident was further investigated or a clearer picture obtained than what he already has of the incident’.

Despite extensive consideration of international jurisprudence in his reasons, Member Davis then held that the European cases referred to were not relevant.

Section 15: right to freedom of expression

Member Davis found that s 15 of the Charter was not engaged in relation to this proceeding. He did not engage in an extensive analysis of s 15 of the Charter.

In considering whether the Applicant had a right to receive the information Senior Member Davis first cited Bell J in Smeaton v Victorian WorkCover Authority [2009] VCAT 1195 and then cited and affirmed the reasoning in McInnes v VicRoads [2009] VCAT 2324.

On the basis of these decisions, and without further analysis, he held that the Respondent did not have a positive obligation to impart information to the Applicant.

Section 7: limitations of rights

In considering s 7 of the Charter, Senior Member Davis referred to and applied the legal contentions made in the matter of XYZ v Victoria Police (which were relied upon by the Respondent in this proceeding) regarding permissible limitations of human rights under the Charter.

In relation to s 7 of the Charter, Member Davis concluded at paragraph 154:

Weighing up all the matters mandated in s 7(2) of the Charter, it is abundantly clear, in this particular instance if a human right is breached (which I have found otherwise) that that limitation on the Charter is permissible by means of the consideration referred to in s 7(2). Put another way, the restrictions imposed pursuant to s 31(1)(d) and (e) and s 38 of the FOI Act as referred to in s 30 of the Corrections Act, is demonstrably justified in these present circumstances. Therefore, even if I had found that the Applicant’s human rights had been breached, in the circumstances of this proceeding, I come to the conclusion that s 31(1)(d) and (e) and s 38 of the FOI Act as it relates to s 30 of the Corrections Act provides a reasonable limitation of those rights.

Conclusion

Overall, the Tribunal’s reasoning in this case weighed heavily in favour of the Respondent. The Tribunal found that the exemptions should be upheld despite the public interest override and Charter considerations.

The Tribunal clearly considered that the application of the Charter is a secondary consideration to the application various provisions of the FOI Act. This approach suggests a general reluctance on the part of the Tribunal to give prominence to Charter considerations in the context of the FOI Act generally and in the context of FOI requests for documents relating to incidents occurring in prison systems specifically.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/2526.html.

Zoe Bateman and Helen Arblaster are lawyers with Corrs Chambers Westgarth and acted pro bono for the Applicant in this proceeding

Supreme Court Considers meaning of ‘Proceeding’ to Determine Application of Charter pursuant to Transitional Provisions

Secretary to the Department of Justice v Fletcher (Ruling No 3) [2009] VSC 503 (22 October 2009)

Section 49(2) of the Charter states that the Charter ‘does not affect any proceedings commenced or concluded before the commencement of Part 2’.

In this case, the question arose as to whether a particular application in relation to an Extended Supervision Order (‘ESO’) under the Serious Sexual Offenders Monitoring Act 2005 (Vic) (‘SOM Act’) was a ‘proceeding’ and, if so, the relevant date of its commencement.

The Court held that, by operation of s 49(2), the Charter did not apply to the proceedings, and in doing so, followed the principle established in R v Williams [2007] VSC 2, by taking a broad view as to what constitutes ‘proceedings’ for the purposes of the Charter’s transitional provisions.

Facts

On 4 March 1998, the respondent, Mr Fletcher, was sentenced for a sexual offence.
On 2 March 2006, the Secretary made an application for an ESO. An ESO was granted on 29 May 2006, with a review date set for 11 June 2009.
On 1 January 2007, Part 2 of the Charter, which enshrines twenty civil and political rights, came into effect.
On 30 January 2008, Mr Fletcher made an amended application for a review of the ESO under s 21(3) of the SOM Act.
On 23 June 2008, the Court granted leave to review and on 24 June 2008 an application for review was made by Mr Fletcher.

Decision

As discussed above, s 49(2) of the Charter states that the Charter ‘does not affect any proceedings commenced or concluded before the commencement of Part 2’.

The Court was also required to determine whether the proceeding initiated by Mr Fletcher on 24 June 2008, or his amended application on 30 January 2008, was a separate proceeding to the proceeding commenced on 2 March 2006. ’Proceeding’ is not defined in the Charter. Justice Cummins held that the applications of 30 January 2008 and 24 June 2008 were steps within a single set of proceedings flowing from the application of 2 March 2006.

Justice Cummins gave several reasons for his decision:

Due to the nature of the application made by the Secretary on 2 March 2006, and by nature of the extensions, variations and other incidents of the application, including the present matter, the later proceedings stemmed from and related back to the original application.
The SOM Act ‘has, as its philosophical foundation, a continuing supervisory and safety function’. This supports the view that the ESO proceedings must be viewed as a single, continuing matter rather than a series of discrete and separately commencing matters.
Reliance was placed on the decision in R v Williams, in which King J interpreted s 49(2) of the Charter to mean that the Charter had no relevance to an individual application for adjournment, since the criminal proceedings as a whole had commenced prior to the introduction or commencement of the Charter, particularly Part 2.
Section 23(6) of the SOM Act, which states that ‘a court on review need not be constituted by the same judge who constituted the court that made the extended supervision order’ supports the view of the series of applications as a continuing single entity.

Justice Cummins determined that, as a matter of law, the Charter did not apply to the present proceeding, as this application was part of a proceeding which commenced on 2 March 2006.

Analysis

This case builds upon the principle established in R v Williams and takes a holistic approach as to what is a ‘proceeding’ for the purpose of the Charter’s transitional provisions.

For several years to come, there will continue to be a large number of proceedings to which the Charter will not apply. This will be the case if the application or proceeding in question can be linked back to an initial proceeding begun prior to 1 January 2007, being the commencement date of Part 2 of the Charter.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2009/503.html.

Kate Murray, DLA Phillips Fox

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Comparative Law Case Notes

Homelessness and the Right to Life, Liberty and Security

Victoria (City) v Adams, 2009 BCCA 563 (9 December 2009)

The British Columbia Court of Appeal has held that a city bylaw which prohibited homeless people from erecting any form of temporary shelter at night in a public park, in circumstances where the number of homeless people exceeded the number of shelter beds available, is a violation of the right to life, liberty and security of the person.

Facts

The City of Victoria in British Columbia, Canada, enacted bylaws which rendered it an offence for a person to erect or take up temporary overnight shelter – such as a tent, tarp or box – in a public park. The trial judge made the following findings of fact, none of which were contested on appeal:

There are more than 1000 people who are homeless in the City on any given night.
The City has between 140 and 326 shelter beds, meaning that ‘hundreds of the homeless have no option but to sleep outside in public places’.
The expert evidence established that sleeping outside without ‘some form of overhead protection’ is associated with ‘significant risks to health including the risk of hypothermia, a potentially fatal condition’.

In proceedings instigated by the City to remove a ‘tent city’ erected by about 70 homeless people in a public park, the British Columbia Supreme Court held that the bylaws were incompatible with s 7 of the Canadian Charter of Rights and Freedoms, which enshrines the right to life, liberty and security of person. The City of Victoria appealed the decision.

Decision

Context

According to the Court of Appeal, this proceeding raised the conflict between the rights of people who are homeless ‘to cover themselves with the most rudimentary form of shelter while sleeping overnight in a public place when there are not enough shelter spaces available’ with the City’s ‘responsibility to the public to preserve public places for the use of all.’ The Court stated that

This constitutional context applies the most lofty of guaranteed human rights – the rights to life, liberty and security of the person – to the needs of some of the most vulnerable members of our society for one of the most basic of human needs, shelter.

Justiciability

On appeal, the City challenged the justiciability of the claim, arguing that the question before the Court was ‘political’ and ‘an improper intrusion into the policy decisions of elected officials’. Rejecting this, the Court stated that, while ‘homelessness is a serious social issue with many causes and no clear or simple solution’ and that ‘it is the role of government to determine how best to allocate scarce resources’, this was not the issue before the court. It stated:

The respondents [a]re not asking the court to adjudicate on the wisdom of policy decisions of elected officials on how to best allocate public resources to address the problem of homelessness. The question before the court [i]s whether the provisions of the Bylaws that prohibit the erection of temporary overhead shelter violate the respondents’ rights under s 7 of the Charter, in circumstances in which there are insufficient alternative shelter opportunities for the City’s homeless.

There is no doubt this is a proper question for a court to address.

The Court further stated that, in any event, ‘the fact that a legal issue raises political concerns does not render it non-justiciable’.

Right to Life, Liberty and Security of Person

Section 7 of the Canadian Charter provides that ‘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 drew on a range of international human rights instruments which enshrine the right to adequate housing to inform the scope and content of s 7, including the International Covenant on Economic, Social and Cultural Rights. It stated that the right is designed to protect ‘fundamental notions of human dignity, personal autonomy and privacy’.

In determining that the challenged bylaws interfered with s 7, the Court stated that:

the homeless represent some of the most vulnerable and marginalized members of our society…prohibiting the homeless from taking simple measures to protect themselves through the creation or utilization of rudimentary forms of overhead protection, in circumstances where there is no practicable shelter alternative, is a significant interference with their dignity and independence. The choice to shelter oneself in this context is properly included in the right to liberty under s 7.

The Court was careful to note that this approach to s 7 did not necessarily impose a ‘positive obligation on the City to provide adequate alternative shelter’ (although it did not foreclose this possibility), but that it merely ‘requires the City to refrain from legislating in a manner that interferes with the s 7 rights of the homeless’.

Is the Limitation Reasonable and Permissible?

Having determined that the bylaws interfered with the rights protected by s 7, the Court then considered whether the limitation was nevertheless permissible, pursuant to s 1, as a ‘reasonable limit prescribed by law’ that could be ‘demonstrably justified in a free and democratic society’.

Applying the well-established approach from R v Oakes [1986] 1 SCR 103, the Court determined that the purpose of the limitation, being the ‘preservation of urban parks’, is a ‘sufficiently important objective’ and that the ‘prohibition on the erection of temporary shelter’ is rationally connected to that objective. In determining that the bylaws were not ‘saved’ by s 1, however, the Court held that the prohibition was not ‘minimally impairing and that the benefits of the prohibition did not outweigh the deleterious effects’:

The serious health risks that homeless people face as a result of the absolute ban on shelter outweigh any benefit that may flow from the blanket prohibition.

Remedy

The Court declared the bylaws ‘inoperative insofar and only insofar as they apply to prevent homeless people from erecting temporary overnight shelter in parks when the number of homeless people exceeds the number of available shelter beds in the City’.

The Court further held that the homeless respondents were entitled to the ‘special costs’ of the trial and appeal (that is, solicitor-client costs) ‘on the basis of the principles applicable to “public interest litigation”’.

Relevance to the Victorian Charter

The decision is consistent with the strong trend in international and comparative jurisprudence towards recognising that civil and political rights have social and economic dimensions. The Court’s approach to s 7 of the Canadian Charter should inform the interpretation of s 9 (right to life), s 13 (right to privacy and the home) and s 21 (right to liberty and security) of the Victorian Charter.

The facts of this case are also highly pertinent to homelessness in Australia and Victoria. According to the Australian Institute for Health and Welfare, on any given day ‘less than half (41%) of all new requests for immediate accommodation are successful, with about 385 people (or 59%) turned away’ (see Demand for SAAP Accommodation by Homeless People 2007-08 (2009)). Young people and families with children are among the groups with the highest turn away rates from homelessness services in Australia. Despite this, there are a range of state and local laws that criminalise aspects of homelessness, including rendering it an offence to camp or erect a tent or other form of temporary accommodation in a public place (see, eg, Melbourne City Council, Activities Local Law 2009, 2.11).

The decision is available at http://www.courts.gov.bc.ca/jdb-txt/CA/09/05/2009BCCA0563.htm.

Philip Lynch is Director of the Human Rights Law Resource Centre

Equality and Public Authorities: Court Considers Exclusion of Female Ski Jumpers from Winter Olympics and Paralympics

Sagen v Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522 (20 November 2009)

The British Columbian Court of Appeal has confirmed that the Canadian Charter of Human Rights and Freedoms does not apply to non-governmental entities or activities. The Court also held that the Charter right to equal benefit of the law does not apply in respect of benefits that are created by a private entity that is not acting as an agent of the Crown.

Facts

A group of highly ranked female ski jumpers (‘Applicants’) sought to challenge the failure of the Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games (‘VANOC’) to include women’s ski jumping in the 2010 Winter Olympics.

The program for the Winter Olympics is set by the International Olympic Committee (‘IOC’). Women’s ski jumping was not included in the 2010 games by the IOC on the recommendation of the Olympic Programme Committee, which found that the development of the sport is still in an early stage and is ‘thus lacking the international spread of participation and technical standard required for an event to be included in the programme’.

The Applicants sought a declaration that if VANOC organises, finances and stages ski jump events for men in the 2010 Winter Olympics, a failure to plan, organise, finance and stage a ski jump event for women violates their equality rights as guaranteed by s15(1) of the Charter. Section 15(1) provides that:

Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Decision

The key issue in the appeal was whether the Charter applies to VANOC in respect of the selection of events to be staged at the Winter Olympics. Section 32(1) of the Charter provides that the Charter applies to Parliament and the government of Canada and to the legislature and government of each province in respect of all matters within the authority of those bodies. The Court of Appeal followed the test for determining the applicability of the Charter to an entity’s activities as set out in Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31. This test provides that the Charter applies where the entity is ‘government’ by its very nature or because the government exercises substantial control over it, or where the entity performs ‘governmental activities’, being activities that are governmental in nature.

The parties agreed that VANOC is not a government entity, so the key question was whether the activities undertaken by VANOC are ‘governmental activities’ that are subject to the Charter. The Court of Appeal held that, when determining this question, it is necessary to consider the ‘nature or function of the specific act or decision of the entity that is said to infringe a Charter right’, as well as the general activities or functions of the entity. As a result, the Court went further than considering the function of hosting and staging the games, and considered specifically whether selecting events for the games was a governmental function or obligation. The Court held that this function was not a ‘policy’ choice or governmental activity. In arriving at this decision, the Court placed much weight on VANOC’s lack of authority to set the program for the Winter Olympics within the IOC framework, implicitly accepting that VANOC also lacked responsibility for setting the Games program.

The Court of Appeal rejected the Appellants’ claim of discrimination on the basis that the Charter did not apply to the decision not to include a women’s ski jumping event in the 2010 Games. Nonetheless, the Court continued to consider and dismiss the Appellants’ contention that this decision denied them the equal benefit of the law, as guaranteed by s 15(1).

The Appellants’ greatest challenge was to demonstrate that the unequal benefit (the availability of men’s jumping, but not women’s) was a product in some way of the ‘law’. The Court held that for the purposes of s 15(1) of the Charter, an action or provision will typically be considered ‘law’ only if its validity derives from statutory authority or in some instances from the ordinary powers of the Crown. The Court held that in this instance, VANOC

…is a private corporation with the powers of an ordinary person. It is not an agent of the Crown. It has no authority to undertake its duties under the Host City Contract without the need for additional powers delegated by the Crown.

The Court further commented that this was not the case of a governmental body attempting to circumvent the Charter by exercising its power through contract instead of legislation. Rather this is a case in which a non governmental body is brought before the court as a result of policies which neither it nor any Canadian authority had the power to change. As a result the Court held that even if the Charter applied to VANOC in respect of the impugned conduct, the Appellants’ claims under s 15(1) could not succeed because the availability of ski jumping events at the 2010 Games is simply not a ‘benefit of the law’ for purposes of s 15(1).

Relevance to the Victorian Charter

Section 6 of the Victorian Charter provides that the Charter applies to certain functions of Parliament, courts and tribunals and to public authorities, including entities that have functions of a public nature when exercising those functions on behalf of the State or a public authority. The scope of the Charter’s application could be significantly curtailed by adopting the approach of the Court of Appeal in this case, particularly the deference shown to the rules of international organisations such as the IOC.

In similar terms to s 15(1) of the Canadian Charter, s 8(3) of the Victorian Charter protects the right to equality before the law and equal protection of the law without discrimination. Section 8(2) of the Victorian Charter further protects the right to enjoyment of human rights without discrimination. It is therefore possible that the decision not to include a women’s ski jumping event would be considered discriminatory under s 8(3) of the Victorian Charter.

The decision is available at http://www.canlii.org/en/bc/bcca/doc/2009/2009bcca522/2009bcca522.html.

Melanie Schleiger is a lawyer with Lander & Rogers. Jack Haldane is a law student at Deakin University.

No Longer Left in the Dark: Right to Municipal Services and the Procedural Fairness Obligations of Electricity Providers

Joseph v City of Johanesburg [2009] ZACC 30 (9 October 2009)

The Constitutional Court of South Africa has held that government-owned electricity service providers have an obligation to accord procedural fairness to tenants receiving electricity before disconnecting supply.

Facts

The applicants were tenants in a block of apartments. City Power, the relevant government-owned service provider, entered into a contract with the landlord to supply electricity to this block. Over time, the tenants paid their electricity bills to the landlord, but he failed to pass on the payments to City Power. Accordingly, on 8 July 2008, City Power disconnected the electricity supply to the block without giving the tenants any prior notice of its intention to do so. The applicants challenged City Power’s actions on the basis that City Power had a duty to accord the tenants procedural fairness in the form of notice and an opportunity to make representations before disconnection.

Decision

Background

The Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’) gives effect to the right to ‘lawful, reasonable and procedurally fair’ administrative action under s 33 of the South African Bill of Rights. Section 3(1) of the PAJA provides that ‘[a]dministrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.’ The High Court found that s 3(1) was not engaged because terminating supply had not affected any right of the applicants. In particular, it was the landlord and not the tenants that had entered into the supply agreement with City Power.

Skweyiya J, writing for the unanimous Constitutional Court, disagreed. His Honour held that the termination of supply was an (i) administrative action that (ii) materially and adversely affected (iii) rights of the applicants. Accordingly, City Power was obliged to accord the applicants procedural fairness. Since no notice was given to the tenants, the decision to disconnect supply was held to be unlawful, and City Power was ordered to reconnect the supply of electricity.

This case note focuses on two issues: whether any rights of the applicants were affected by the decision to terminate supply for the purposes of s 3(1) PAJA, and the content of procedural fairness if s 3(1) is engaged.

Right to receive electricity

The key issue was whether disconnecting the electricity supply affected any rights of the applicants, as no legitimate expectation was claimed. This turned on ‘whether the broad constitutional relationship that exists between a public service provider and the members of the local community gives rise to rights’ for the purpose of PAJA s 3. Skweyiya J found that the applicants could be said to have a ‘right’ to receive electricity for the purpose of the PAJA.

His Honour noted that the ‘provision of basic municipal services is a cardinal function, if not the most important function, of every municipal government.’ Constitutional and statutory provisions impose a duty on local governments to provide services including electricity. There is thus a ‘correlative public law right’ to receive those services. Such ‘legal entitlements that have their basis in the constitutional and statutory obligations of government’ constitute ‘rights’ for the purpose of s 3 PAJA. His Honour observed: ‘In depriving [the applicants] of a service which they were already receiving as a matter of right, City Power was obliged to afford them procedural fairness before taking a decision which would materially and adversely affect that right.’

Content of procedural fairness

Skweyiya J held that procedural fairness required adequate pre-termination notice, containing ‘all relevant information, including the date and time of the proposed disconnection, and the place at which the affected parties can challenge the basis of the proposed disconnection. Moreover, it must afford the applicants sufficient time to make any necessary enquiries and investigations, to seek legal advice and to organise themselves collectively if they so wish. At a minimum, it seems to me that 14 days’ pre-termination notice is fair’. Procedural fairness did not require City Power to process representations in every case. Rather, tenants must be able to challenge a proposed termination and tender payment of arrears. Where a valid ground of challenge has been raised, City Power would be expected not to disconnect the supply of electricity.

Relevance to the Victorian Charter

This decision has potentially significant implications for the obligations of essential service providers in Victoria.

Although the electricity sector in Victoria is privatised (in contrast to the State-owned supplier in Joseph), it is likely that Victorian electricity service providers would nevertheless be bound by the Victorian Charter as ‘functional public authorities’ under s 4(1)(c). As such, they are likely to be legally required to act compatibly with human rights and give proper consideration to human rights in decision making processes (s 38(1)).

Moreover, although the Victorian Charter does not directly enshrine social or economic rights (in contrast to the South African Bill of Rights), there are a number of civil and political rights with social and economic dimensions that may engage the supply of electricity, including the right to privacy, family and the home (s 13).

The decision is available at http://www.constitutionalcourt.org.za/site/Joseph.htm.

Chris Tran, Summer Clerk, Mallesons Stephen Jaques Human Rights Law Group

Deportation of Non-Nationals and the Right to Respect for Family Life

Omojudi v United Kingdom [2009] ECHR 1820/08 (24 November 2009)

The European Court of Human Rights has held that the deportation of Steven Omojudi from the United Kingdom to Nigeria was an unjustifiable interference with Omojudi’s right to respect for private and family life under art 8 of the European Convention on Human Rights. Omojudi had lived in the UK for 26 years. During this time, he had been convicted of two serious criminal offences. In reaching its decision, the Court emphasised the long period during which Omojudi had not committed any offences and the significant disruption to his family life in the UK.

Facts

Omojudi is a Nigerian national who moved to the UK in 1982 when he was 22 years old. He was joined by his partner in 1983. Prior to his deportation, Omojudi lived with his wife, three children and one grandchild.

In 1989, Omojudi was convicted of theft and conspiracy for using a stolen passport, and sentenced to five years imprisonment. In full knowledge of these previous offences, the Secretary of State for Home Department granted Omojudi and his wife Indefinite Leave to Remain in the UK from 2005. In 2006, Omojudi was convicted of sexual assault, and sentenced to 15 months imprisonment. In March 2007, the Secretary of State for the Home Department ordered that Omojudi be deported. He was deported to Nigeria on 27 April 2008.

Decision

The Court held that the deportation unjustifiably interfered with Omojudi’s right to respect for family and private life under art 8 of the Convention. It was common ground in the case that:

the deportation had a basis in domestic law and served a legitimate aim, being the prevention of disorder and crime; and
the deportation interfered with Omojudi’s right to private and family life under the Convention.

The key issue was whether the interference with Omojudi’s rights was ‘necessary in a democratic society’. The Court gave examples of the factors relevant in determining whether deportation was ‘necessary’. They include:

the nature and seriousness of the offence;
the length of the applicant’s stay in the country;
the age of the applicant’s children;
the seriousness of the difficulties which the spouse and the children are likely to encounter in the country to which the applicant is to be expelled; and
the solidity of ties with the host country and with the country of destination.

The Court attached great weight to the length of Omojudi’s residence in the UK. The Court held that while Omojudi and his wife had spent ‘the formative years of their lives in Nigeria’, they now had ‘much stronger ties to the United Kingdom’. The Court also noted that Omojudi’s teenage children were ‘not of an adaptable age’ and would encounter ‘significant difficulties’ if they relocated to Nigeria. This justified the decision of Omojudi’s wife to remain in the UK despite her husband’s deportation to Nigeria, and ensured the disruption of family life.

The Court emphasised that Omojudi’s two serious criminal offences occurred 16 years apart. In the intervening period, Omojudi had ‘largely stayed out of trouble’. This indicated that there was no ‘history and pattern of reoffending’. The Court also considered it relevant that the Secretary of State had granted Omojudi Indefinite Leave to Remain in 2005, fully aware of his first serious criminal offence.

The remedy awarded to Omojudi was damages of EUR 9000 (EUR 3000 for non-pecuniary damage, and EUR 6000 for legal costs and expenses).

Relevance to the Victorian Charter and to Australian Law and Policy

Omojudi primarily concerns the human rights implications of the power to deport non-nationals. In Australia, the power of deportation is a Commonwealth power. The Victorian Charter of Human Rights and Responsibilities Act 2006 does not govern the exercise of Commonwealth power. A case regarding deportation from Australia would, therefore, not engage the Charter.

However, under s 32 of the Charter, judgments of international courts may be considered in interpreting a statutory provision. This case may provide guidance to the interpretation of the right to protection from arbitrary interference with family under s 13 of the Charter.

Omojudi indicates that the existence of ‘family life’ can be easily established where there is co-habitation of parents and children under the age of 18. These factors are likely to be similarly relevant to the existence of ‘family’ under the Charter. The Court held that ‘family life’ existed between Omodjui and his wife and two younger children, aged 17 and 18. Co-habitation was the primary evidence of ‘family life’ that the Court relied upon. The Court held that it was not necessary to determine whether ‘family life’ existed between Omojudi and his eldest child, aged 23, who had his own child, and still lived in the family home.

The Court’s consideration of whether the interference with Omojudi’s rights was ‘necessary in a democratic society’ may be relevant to the interpretation of s 7 of the Charter. Section 7 states that a human right may be subject to limits that are ‘demonstrably justified in a free and democratic society’. Omojudi indicates that a high threshold will be required before a limitation on a right will be considered ‘necessary’. In this case, the Court held that the deportation of an individual who had committed nine criminal offences and served two jail sentences was not ‘necessary’ for the prevention of crime.

Considered more broadly, the case may also have future application to the Federal Government’s exercise of the power of deportation or removal. There is currently no legislative human rights instrument at the federal level that restrains the power of deportation. If a federal human rights instrument were introduced — and it protected the right to family life — the decision to deport a person could potentially be challenged on the basis that it interferes with the individual’s right to family life.

In the absence of a federal human rights instrument, the decision may still have current relevance to the power of deportation. The right to protection from arbitrary interference with family is protected by art 17 of the International Covenant on Civil and Political Rights. Australia is a signatory to the ICCPR and the First Optional Protocol to the Covenant. An individual could make a communication to the Human Rights Committee under the Optional Protocol that their rights under art 17, among others, have been contravened by the deportation. The case of Omojudi may be relevant to the Committee’s determination of the matter.

The decision is available at http://www.bailii.org/eu/cases/ECHR/2009/1942.html.

Lucy Maxwell and Liam Hickey, Summer Clerks, Mallesons Stephen Jaques Human Rights Law Group

Right to Respect for Family Life and Equal Treatment: Fathers’ Right to Custody of a Child Born out of Wedlock

Zaunegger v Germany [2009] ECHR 22028/04 (3 December 2009)

In this case, the European Court of Human Rights held by six votes to one that the denial of a fathers’ right to custody of a child born out of wedlock violated his right to respect for family life under art 8, in conjunction with discriminatory treatment under art 14 of the European Convention. The Court examined the tension between the right of fathers to have their family life respected and art 1626a § 2 of the German Civil Code and determined it amounted to unjustified discrimination against unmarried fathers on the grounds of sex in comparison with divorced fathers.

Facts

The appellant had a child out of wedlock in 1995 that was raised by both parents until their separation in August 1998. Pursuant to art1626a § 2 of the German Civil Code, the mother held sole custody for the child upon their separation. Article 1626a § 2 of the Civil Code only grants joint custody to parents of children born out of wedlock by consent of both parents. In the absence of mutual agreement between the parents, custody is automatically granted to the mother in the child’s best interest. The applicant was given visitation of the child that amounted to four months per year following the separation but a minimum agreement for a declaration of custody was not reached by the parties.

The applicant made a complaint on the grounds that he had no possibility of obtaining joint custody against the will of the mother and that he was excluded by force of law from seeking judicial review. His application for joint custody was dismissed by the Cologne District Court and this decision was upheld by the Cologne Court of Appeal in October 2003. The Federal Constitutional Court declined to hear the appellants’ constitutional complaint. In a previous challenge, the Constitutional Court upheld the constitutionality of art 1626a § 2 of the Civil Code on the basis that, in the event of a serious dispute between parents, Courts could not be expected to consider joint custody to be in a child’s best interests. Accordingly, the Constitutional Court did not consider art 1626a § 2 to be incompatible with the right to respect for the family life of fathers.

Decision

Article 8 of the European Convention provides the right to respect for private and family life and art 14 protects against discrimination.

For the purpose of art 8, the Court reiterated that ‘the notion of family…is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together out of wedlock’. The Court further noted that ‘the mutual enjoyment by a parent and child of each other’s company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures which hinder such enjoyment amount to an interference with the right protected by art 8’.

Having determined that the facts of the case engaged art 8 of the Convention, the Court then turned to consider whether there was a violation of art 14, which ‘affords protection against different treatment, without an objective and reasonable justification of persons in similar situations’.

The Government argued that art 1626a § 2 of the Civil Code and the vesting of custody in the mother is designed to ensure that, from birth, there is certainty as to the legal custodian of the child. The Government further argued that the presumption against joint custody without consent is ‘based on the notion that parents who could not agree to make a custody declaration were highly likely to come into conflict when specific questions relating to the exercise of parental custody were at stake, which could cause painful disputes which would be detrimental to the child’s interests’.

The European Court explained that while it is hesitant to scrutinise domestic legislation in the abstract, an examination of the application of the legislation to this case revealed an unjustified and different treatment of the applicant in comparison with the mother and divorced fathers. The Court reasoned that dismissing the fathers’ application without evaluating the child’s best interests was discriminatory. This was especially so in the present case given that the father had been a consistent presence in the child’s life from birth until the child reached the age of three and a half. Further, even after the separation, the father continued to have close contact and involvement with the child, ‘providing for his daily needs’.

In finding a violation of art 14 when read in conjunction with art 8, the Court stated that it could not share the Government’s assumption that joint custody against the will of the mother is prima facia not to be in the child’s interests. The Court determined that there was no reasonable relationship of proportionality between the general exclusion of judicial review of the initial attribution of sole custody to the mother and the aim pursued, namely the protection of the best interests of a child born out of wedlock. The Court found the Government’s arguments insufficient to allow for less judicial scrutiny or for the appellant, who had been acknowledged as a farther and acted in that capacity, to be treated differently from a father who originally held parental authority and later separated from the mother or divorced.

Relevance to the Victorian Charter

This case has direct relevance for the interpretation of s 8 (right to equality) and s 13 (right to privacy) of the Victorian Charter which largely mirror arts 14 and 8 of the European Convention. In addition, s 17 of the Charter provides protection of families and children. Under s 17(2) every child has the right, without discrimination, to such protection as is in his or her best interests.

This case may provide useful guidance in appraising whether violations of the right to privacy and family life are inconsistent with the Victorian Charter, particularly the Court’s consideration of the child’s best interest.

The decision is available at http://www.bailii.org/eu/cases/ECHR/2009/1982.html.

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

The Prohibition of Ill-Treatment and Prevention of Destitution in a Third State

EW, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 2957 (Admin) (18 November 2009)

In this case, the England and Wales High Court held that the extradition of an asylum seeker to a safe third country did not constitute refoulement even if that country was not able to provide temporary accommodation and financial support. The right to freedom from cruel, inhuman and degrading treatment is entrenched in the International Covenant on Civil and Political Rights, the Victorian Charter of Human Rights and, relevantly for this case, the European Convention on Human Rights. However, the Court in EW found that this right did not impose a positive obligation to ensure a ‘general right to accommodation or a minimum standard of living’ and, as such, would not be breached by the extradition. The Court stated that ‘the setting of such a minimum standard – no matter how low – is a matter for social legislation, not the courts’.

Facts

The claimant, EW, was an asylum seeker from Eritrea who had entered Europe through Italy. Soon after arriving in Italy he fled and was later then found by officials in the United Kingdom. Under the Dublin II Regulation – an agreement between European states on asylum seekers – EW should have been returned to Italy as he first applied for asylum there. However, EW made an application to the Secretary of State in the UK to grant him asylum on the basis that his removal would constitute a breach of the England’s non-refoulement obligations. EW claimed that if he were returned to Italy, he would face ‘a real risk of destitution and humiliation’. The Secretary denied his application. EW then appealed the Minister’s decision on the basis that his extradition would constitute refoulement because: 1) in Italy he was at risk of destitution; and 2) ‘patent failures of the Italian authorities’ meant that his right to freedom from cruel, inhuman and degrading treatment would not be protected.

Decision

EW’s application for asylum was refused. Hickinbottom J determined that no right to accommodation or a minimum standard of living could be found in the Dublin II Regulation, European law or domestic law. He asserted that, if a standard were to be set, this should be done by the legislature and not the courts.

While it was recognised that the situation faced by asylum seekers in Italy is more difficult than that faced in the UK, there were no grounds to find that extradition would constitute refoulement. It was noted that not even Italians themselves have a guaranteed right to housing. Even though EW could not join a housing wait-list until he was granted asylum, he had failed to show his expected standard of living would be so low that it would constitute ‘inhuman and degrading’ treatment.

The Court did acknowledge that there may be some circumstances in which ‘poor living conditions can amount to inhuman and degrading treatment’, but only if such conditions stem from ‘treatment’ and not a ‘mere failure’ to prevent destitution: see also R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66, [66].

In the present case, Hickinbottom J found that if EW were to return to Italy, he would be provided with accommodation according to Italian law for several weeks. If, after that time, his application had still not been determined, he would cease to be provided with accommodation but would still not be in a situation which could be classified as ‘cruel, inhumane and degrading’. This is particularly the case as he would most likely be homeless for only a few weeks before his application was determined.

The Court noted that it was not the role of one European state to police the adherence to human rights obligations of another state. Despite this, upon his assessment, he found that there was no evidence of systematic, routine or even regular frustration of the asylum-seeker application process by Italian authorities. Nor was there an unreasonable delay in the determination of an application for asylum or inadequate information on the asylum process provided to asylum seekers. The situation that EW would have faced in Italy was a result of stressed resources and not an intentional avoidance of human rights obligations by Italian authorities.

Relevance to Victorian Charter

Section 10 of the Victorian Charter of Human Rights protects against ‘cruel, inhuman and degrading treatment’. It is notable that s 3 of the Charter defines an ‘act’ as including a ‘failure to act’. Accordingly, it is to be hoped that Victorian Courts take a more progressive approach to the positive obligations associated with the prohibition against ill-treatment than that taken by the England and Wales High Court in this case. This more progressive approach would be consistent with that which is emerging from the European Court of Human Rights (see, eg, Z v United Kingdom (2001) 34 EHRR 97 in which the UK was found to have a positive obligation to act to protect children from abuse and neglect), the UN Human Rights Committee (see, eg, Concluding Observations on Australia in which the Committee recommended that the state take action to ensure the protection of the human rights of homeless people, including the right to life) and Canadian courts (see, eg, Victoria v Adams, 2009 BCCA 563).

The decision is available at http://www.bailii.org/ew/cases/EWHC/Admin/2009/2957.html.

Eva Wilson is a volunteer with the Human Rights Law Resource Centre

What is a ‘Child’? Age Determination in Asylum Applications

A, R (on the application of) v London Borough of Croydon [2009] UKSC 8 (26 November 2009)

The difficulty in determining age has become prominent as a consequence of the increased movement of children around the world, and specifically the increased migration of unaccompanied young people. It is an issue of particular significance, for a number of reasons. States often have – or at least, ought to have – different policies and procedures in place in relation to the treatment of asylum seekers who are children. These may relate, for example, to the provision of guardianship, the provision of legal aid, conditions of any ‘detention’, the substantive consideration of whether the asylum seeker satisfies the requisite test (ie the refugee definition), or access to particular social entitlements (housing, welfare, education etc).

A recent decision of the newly constituted United Kingdom Supreme Court considers the role of the court in determining a young person’s age in the asylum context. Specifically, the Court was required to consider whether United Kingdom law required that, in cases where a young person’s age could not be resolved through administrative processes, the court should make the final determination.

Facts

The decision arose out of a series of cases where young people had been denied accommodation under s 20(1) of the Children Act 1989 (UK), as a consequence of a contested age determination. Section 20(1) reads as follows:

(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –

(a) there being no person who has parental responsibility for him;

(b) his being lost or having been abandoned; or

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

In total, there were seven separate claims, however the Court only factually addressed the two lead claims: A and M.

A arrived in the United Kingdom and claimed asylum in 2007. On arrival he asserted that he was fifteen and a half, however the immigration officer considered that he was eighteen and referred him for an age assessment. He was interviewed by two social workers who assessed him as an adult. He was subsequently treated as such. Shortly afterwards, his solicitors produced a copy of his birth certificate, and arranged for an examination by a paediatrician. Both the birth certificate and the examination supported the fact that A was fifteen and a half. Notwithstanding these findings, a decision was made that A was not entitled to accommodation under s 20(1) of the Children Act 1989 (UK).

M arrived in the United Kingdom and claimed asylum in 2006. He asserted that he was just under seventeen, however his age was also disputed and he was referred for an age assessment by two social workers who concluded that he was over eighteen. Once again a paediatrician’s report was obtained, which concluded that he was under eighteen.

For the purposes of the appeal to the Supreme Court, the three issues for consideration where:

(i) whether, as a matter of statutory construction, the duty imposed by s 20(1) is owed only to a person who appears to the local authority to be a child, so that the authority’s decision can only be challenged on ‘Wednesbury’ principles, or whether it is owed to any person who is in fact a child, so that the court may determine the issue on the balance of probabilities;

(ii) whether the issue ‘child or not’ is a question of ‘precedent’ or ‘jurisdictional’ fact to be decided by a court on the balance of probabilities; and

(iii) whether s 20(1) gives rise to a ‘civil right’ for the purpose of art 6(1) of the European Convention on Human Rights (the right to a fair hearing) and, if so, whether the determination of age by social workers subject to judicial review on ‘Wednesbury’ principles is sufficient to comply with the requirement that the matter be determined by a fair hearing before an independent and impartial tribunal.

The appellants submitted that, in cases of dispute, the court must decide whether a person is a child on the balance of probabilities. The respondent local authorities, supported by the Home Secretary, submitted that the authority must decide the matter, subject only to judicial review (on the ordinary bases).

Decision

The lead judgment was delivered by Lady Hale. The case was ultimately disposed of by way of determination of the first issue (issue (i)), however the Court briefly commented on issues (ii) and (iii) (these have not been addressed in this note).

The Court drew a distinction between the use of the terms ‘child’ and ‘child in need’ in s 20(1) of the Children Act 1989. As regards ‘child in need’ the Court stated (at [26]):

The question whether a child is ‘in need’ requires a number of different value judgments…Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the court on the ordinary principles of judicial review. Within the limits of fair process and ‘Wednesbury reasonableness’ there are no clear cut right or wrong answers.

While the question of whether a child is ‘in need’ requires a number of different value judgments (although, in the context of child asylum seekers see the comment of Lord Hope noted further below), the Court considered that the term ‘child’ was objective, allowing for a right or wrong answer. The Court stated (at [27]):

But the question whether a person is a ‘child’ is a different kind of question. There is a right or wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.

On this basis, the Court allowed the appeals, the result being that if live issues remain about the age of a person seeking accommodation under s 20(1) of the Children Act 1989, then the court will ‘have to determine where the truth lies on the evidence available’ (at [46]).

Analysis

The decision of the Supreme Court provides an illustration of the need to provide sufficiently tailored protection for children seeking asylum. On this point, an aside from Lord Hope strikes with some resonance (at [56]):

The question whether the applicant is a child ‘in need’ must then be for the social worker to deal with. But it is very hard to see how an unaccompanied child who is an asylum seeker could be otherwise than in need.

Notwithstanding the fact that approximately 42% of the world’s refugees are under the age of 18 (at current estimates, this equates to approximately 7 million children), States have been remarkably latent in the development of policies specific to children. On 27 October 2009, the Special Rapporteur on the human rights of migrants, Mr Jorge Bustamante, presented his latest report to the General Assembly at United Nations Headquarters in New York. That report focused on the protection of children in the context of migration. In his report, Mr Bustamante identified a ‘protection gap’ deriving from a lack of specific provisions on children in migration laws, policies and programs: ‘Most migration laws do not reflect a child rights perspective, nor do they have specific provisions relating to children’.

There are some exceptions: the United Kingdom’s policies regarding the provision of accommodation to children under s 20(1) of the Children Act 1989 is one. But as this case illustrates, even where child specific policies are implemented, children are faced with an additional hurdle to access those entitlements. In circumstances where age is very much a construct of the developed world, and where children have often fled with little or no thought to obtaining documentary evidence of their age, this hurdle may in many cases prove insurmountable. The United Kingdom has attempted to deal with these difficulties by developing a holistic age determination system carried out by social services. Both Australia and the United States often still rely on one-dimensional physical tests (for example wrist x-rays), despite the fact that these have proven unreliable (and can carry radiation risks).

Whatever the means adopted for determining age (although, in my view, the United Kingdom approach is clearly preferable), it seems entirely appropriate – particularly considering the specific benefits that may (or at least ought) flow from status as a child asylum seeker – that recourse is available to a court for a final determination. In finding such, the decision of the Supreme Court is to be applauded.

The decision is available at http://www.bailii.org/uk/cases/UKSC/2009/8.html.

Jason Pobjoy, PhD candidate, Gonville and Caius College, University of Cambridge

Balancing Freedom of Expression and the Right to Privacy

BKM Ltd v British Broadcasting Corporation [2009] EWHC 3151 (Ch) (02 December 2009)

In a case concerning the relationship between the right to freedom of expression of media agencies and the right to privacy of nursing home residents, the England and Wales High Court has conducted a balancing exercise and found that the public interest in the case favoured the right to freedom of expression.

Facts

Glyndwr Nursing Home is an aged care home in Wales run by BKM Ltd. As part of a proposed television program regarding care standards in aged care homes, the BBC in Wales sent a reporter undercover into Glyndwr as a care worker. During this time, secret filming of the treatment of residents at the home was taken, which revealed (among other things) inappropriate lifting techniques, inadequate privacy for residents being bathed and failure to follow hygiene guidelines.

BKM brought an application before the England and Wales High Court to restrain broadcast of the program, arguing an injunction was necessary to protect the rights of the home’s residents to privacy under art 8 of the European Convention on Human Rights as incorporated in the Human Rights Act 1998 (UK). (Mann J also observed that BKM’s own reputation and effect on its business seemed to be significant underlying factors to the decision to bring the application.) In response, the BBC relied on its right to freedom of expression under art 10 of the Convention, arguing that the public interest in inadequate aged care standards demanded that the material be broadcast.

Decision

Mann J confirmed that he was required to conduct a balancing exercise between the right to freedom of expression and the right to privacy, as per Lord Steyn’s approach in Re S (A Child) [2005] 1 AC 593. This balancing exercise is undertaken in light of s 12(3) of the Act, under which publication cannot be restrained before trial unless the court is satisfied that the applicant is likely to establish at trial that publication should not be allowed. The BBC also had the benefit of s 12(4) of the Act, under which courts must have regard to the importance of the right to freedom of expression and any relevant privacy code. Mann J found that the BBC’s secret filming had complied with relevant privacy codes.

Mann J determined that the potential level of invasion of the residents’ privacy was reduced by the BBC’s promise to pixelate images such that the residents would be unidentifiable. Balancing the significant public interest in exposing inadequate standards of care in nursing homes against the ‘relatively slight’ invasion of the residents’ privacy, Mann J concluded that the right to freedom of expression in this case out-weighed any infringement of the residents’ privacy rights.

Accordingly Mann J refused to grant the interim injunction sought by BKM.

Relevance to the Victorian Charter

The decision of the England and Wales High Court provides guidance for interpretation of s 15 (the right to freedom of expression) and s 13 (the right to privacy) of the Charter, particularly in situations where those rights compete. The decision can be distinguished, though, on the basis that the Charter does not contain provisions similar to ss 12(3) and 12(4) of the UK Human Rights Act, which place greater emphasis on the importance of freedom of expression in the balancing equation.

The decision is available at http://www.bailii.org/ew/cases/EWHC/Ch/2009/3151.html.

Jessica Zikman is a lawyer with Lander & Rogers

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HRLRC Policy Work

Human Rights Leadership: Initiatives to Promote Human Rights at Home and Abroad

On 10 December 2009, the Centre released a paper entitled Human Rights Leadership: Initiatives to Promote Human Rights at Home and Abroad. The paper, which was provided to the Federal Government in September, proposes initiatives which Australia could take to strengthen a range of normative, preventative and remedial mechanisms to protect human rights at the local, regional and international levels.

The proposed initiatives are designed to respond to existing human rights challenges and to capitalise on emerging human rights opportunities and include:

the development of a comprehensive, integrated strategy on human rights and foreign policy;
the development of a human rights agenda for Australia’s UN Security Council candidacy;
ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, together with a range of other human rights instruments;
the development of a detailed plan and consultative process to prepare for the UN Human Rights Council’s Universal Periodic Review of Australia;
the nomination of Australian experts to UN treaty bodies and as Special Procedures of the UN Human Rights Council;
the appointment of an Australian Human Rights Ambassador to promote human rights across all areas of foreign policy and development cooperation, and to ensure a coordinated and coherent approach to human rights at the international level;
the provision of resources to assist Australian NGOs to engage with the UN human rights system;
the funding of an Oceania network of human rights NGOs;
the provision of resources and technical assistance to build human rights capacity in the Pacific, including by promoting treaty ratification and the establishment of national human rights institutions and a regional human rights mechanism;
expansion of the AusAID Human Rights Small Grants Scheme;
the establishment of an Australian Joint Parliamentary Committee on Human Rights;
measures to operationalise the UN framework on business and human rights at the international and domestic levels;
the enactment of comprehensive national equality legislation to promote substantive equality and address systemic discrimination; and
the resourcing of Australian human rights education and advocacy.

The paper is available at www.hrlrc.org.au/content/topics/asia-pacific/australia-and-human-rights-leadership-initiatives-to-promote-human-rights-at-home-and-abroad/.

Philip Lynch is Director of the Human Rights Law Resource Centre

Enhancing Democracy: A Human Rights-Based Approach to Electoral Reform

On 3 December 2009, the Centre made a submission in response to the Australian Government’s Green Paper on electoral reform.

The submission argues that Australia’s electoral system should reflect and implement Australia’s international human rights obligations, in particular by protecting and promoting the right to vote, freedom of expression, the right to participate in public affairs and the right to equality and non-discrimination. This approach will both strengthen Australia’s democratic institutions and culture and enhance our international and regional standing in regard to human rights.

The submission also addresses the particular categories of persons who are currently disenfranchised, arguing that:

all prisoners should have the right to vote;
the exclusion of all ‘persons of unsound mind’ from the franchise is discriminatory and should be removed;
the minimum voting age should be reduced to 17 years of age; and
permanent resident non-citizens should be entitled to vote.

Finally, the submission makes a range of recommendations to ensure the effective enjoyment of electoral electoral rights across the community, including particular initiatives to ensure the full participation of people experiencing homelessness, young people, Aboriginal people and people with disability.

The Centre acknowledges the significant contribution of leading law firm Allens Arthur Robinson to the research and drafting of the submission, which is available at www.hrlrc.org.au/content/topics/civil-and-political-rights/enhancing-democracy-a-human-rights-based-approach-to-electoral-reform-dec-2009/.

Emily Howie is a Senior Lawyer with the Human Rights Law Resource Centre

Right to a Fair Hearing: Australia’s Judicial System and the Role of Judges

The Senate Legal and Constitutional Affairs Committee has tabled a unanimous report regarding Australia’s judicial system and the role of judges. The report considers and makes recommendations regarding judicial qualification, appointment, independence, accountability and education.

The report refers extensively and positively both to the HRLRC’s submission and evidence and to a range of international human rights norms, including art 14 of the ICCPR, the UN Human Rights Committee’s General Comment No 32 on equality before the law and the right to a fair hearing, and the UN Basic Principles on the Independence of the Judiciary.

The report is at www.aph.gov.au/senate/committee/legcon_ctte/judicial_system/report/report.pdf.

Philip Lynch is Director of the Human Rights Law Resource Centre

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HRLRC Casework

Alice Springs Town Camp Takeover to Proceed

On 26 November 2009, the Federal Court of Australia dismissed an application by residents of the Alice Springs Town Camps to declare invalid the Federal Government’s proposed 40-year leases over the town camps. The decision of Mansfield J now enables the Federal Government to take control of Aboriginal land for 40 years, during which time residents will be substantially alienated from participating in decision making about what happens in the town camps. The residents have been extremely concerned that the terms of the 40‑year leases impact on their fundamental rights of self-determination and control over communal lands.

For over 12 months, the Indigenous Affairs Minister, Jenny Macklin, ‘negotiated’ with Tangentyere Council over the terms of the proposed 40-year leases. Throughout the negotiations, town camp residents were concerned to ensure that they retain some meaningful form of involvement in decision making about matters which directly affect them.

In May this year, Minister Macklin threatened the town camps with compulsory acquisition if they did not agree to the 40-year leases. Faced with the abhorrent prospect of compulsory acquisition, the Housing Associations signed the 40-year leases, but not without highlighting that they were being signed under duress. It has been made clear to Minister Macklin that the Housing Associations entered into the 40-year leases for the simple reason that the Minister threatened them with compulsory acquisition if they did not enter into the leases.

In essence, the Federal Court’s ruling was that entering into the 40-year leases was in the best interests of the town camp residents, because the only other option open to them was compulsory acquisition of their land by the Federal Government.

The Court’s decision is available at www.austlii.edu.au/au/cases/cth/federal_ct/2009/1397.html.

Ben Schokman is a Senior Lawyer with the Human Rights Law Resource Centre

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

The Centre recently acted for a Victorian prisoner regarding access to adequate health care and the right to be treated with dignity in prison. The prisoner was subject to an invasive oral cavity search as a condition of receiving daily medication taken in tablet form. The medication was prescribed for a chronic and life threatening health condition and does not have any divertable value so far as concerns illicit drug use in prison. The prisoner considered the oral cavity searches to be unnecessary, invasive, demeaning and degrading. Further, he had no record of drug use in prison.

On behalf of the prisoner, the Centre wrote to the prison manager recalling that, pursuant to s 38(1) of the Victorian Charter of Human Rights, Corrections Victoria is legally required to act compatibly with human rights and to give real, genuine and proportionate consideration to human rights in all decision-making processes. This requires that policy be formulated having proper regard to human rights and that practice be compatible with such rights. The Centre also raised s 22 of the Charter, which provides that all persons deprived of liberty be treated with dignity and respect. It is well established that this means that prisoners must not be subject to any interferences with rights other than those which are strictly necessary as a consequence of the deprivation of liberty itself. Section 7(2) of the Charter, as recently interpreted by Warren CJ of the Supreme Court of Victoria, further requires that any limitations on rights be demonstrably justified by the state, supported by cogent and compelling evidence as to their necessity and proportionality, and be compatible with basic notions of dignity and freedom.

Following discussions and negotiations, prison management agreed to revise its policy and practice pertaining to oral cavity searches. The prisoner is no longer subject to invasive oral cavity searches as a condition of receiving medication. Further, the prison has agreed to erect screens to protect the privacy of prisoners receiving such medication.

Philip Lynch is Director of the Human Rights Law Resource Centre

Prisoner Denied Access to CCTV Footage of Alleged Assault in Prison

VCAT has rejected a Freedom of Information request made by a prisoner to the Victoria Police to access CCTV footage of an alleged assault in prison. The prisoner had sought access to a copy of the video footage, as well as an audio tape of a police interview, on the basis of concerns that he had about whether his alleged assault by prisoner officers had been properly investigated. Senior Member Davis upheld the decision of the Victoria Police not to release the documents on the basis that their release would be likely to compromise the security and good order of the prison.

The decision is available at www.austlii.edu.au/au/cases/vic/VCAT/2009/2526.html.

Ben Schokman is a Senior Lawyer with the Human Rights Law Resource Centre

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Seminars and Events

Applying Human Rights – RMIT Australian Centre for Human Rights Education

The Australian Centre for Human Rights Education (ACHRE) works to assist people and organisations in order to understand, exercise and apply human rights in their daily lives.

Applications are now open for 2010 entry to the ACHRE’s Graduate Diploma in Applied Human Rights. This is a new program that has been developed through strong partnerships with key agencies. The course explores what it means to build a culture and practice of human rights within your workplace or community. You will integrate skills, strategy and learning directly into the work you do for government, advocacy or the not-for-profit and business sectors. Master and Doctorate degrees by research/project are also offered.

For more information, contact Dr Liz Branigan on (03) 9925 3153 or liz.branigan@rmit.edu.au or visit www.rmit.edu.au/achre.

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Human Rights Resources

New Issue of Alternative Law Journal – The Architecture of Justice

The Alternative Law Journal is a quarterly refereed journal which focuses on social justice, human rights, access to justice, progressive law reform and legal education. The Journal has a diverse readership among legal practitioners, judges, policy makers, law students and legal studies students.

The latest issue, themed The Architecture of Justice, contains articles on highly topical issues such as Indigenous property rights, same-sex equality, gender equality, disability discrimination, domestic violence, greening workplaces, and war crimes in Iraq.

For further information and to subscribe for the very low rate of $77.00 per year (for individuals), go to http://www.altlj.org/.

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Human Rights Jobs

Human Rights Roles with the Victorian Government Solicitors Office

The Victorian Government Solicitors Office is recruiting for three human rights lawyer positions:

Principal Human Rights Lawyer (applications close 11 Jan 2009)
Human Rights Lawyer (applications close 11 Jan 2009)
Human Rights Intern (applications close 18 Jan 2009)

For further information, see www.vgso.vic.gov.au/working/vacancies.aspx.

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Foreign Correspondent

US Secretary of State Outlines a ‘Human Rights Agenda for the 21st Century’

On 14 December 2009, US Secretary of State, Hillary Clinton, gave a major speech outlining ‘the Obama Administration’s human rights agenda for the 21^st century’. Below is an edited extract of those remarks:

“Our human rights agenda for the 21st century is to make human rights a human reality, and the first step is to see human rights in a broad context. Of course, people must be free from the oppression of tyranny, from torture, from discrimination, from the fear of leaders who will imprison or ‘disappear’ them. But they also must be free from the oppression of want – want of food, want of health, want of education, and want of equality in law and in fact.

Human rights have both negative and positive requirements. People should be free from tyranny in whatever form, and they should also be free to seize the opportunities of a full life. That is why supporting democracy and fostering development are cornerstones of our 21^st century human rights agenda.

This Administration will promote, support, and defend democracy. But it is crucial that we clarify what we mean when we talk about democracy, because democracy means not only elections to choose leaders, but also active citizens and a free press and an independent judiciary and transparent and responsive institutions that are accountable to all citizens and protect their rights equally and fairly. In democracies, respecting rights isn’t a choice leaders make day by day; it is the reason they govern.

At the same time, human development must also be part of our human rights agenda. Because basic levels of well-being – food, shelter, health, and education – and of public common goods like environmental sustainability, protection against pandemic disease, provisions for refugees – are necessary for people to exercise their rights, and because human development and democracy are mutually reinforcing.

Human rights, democracy, and development are not three separate goals with three separate agendas. That view doesn’t reflect the reality we face. To make a real and long-term difference in people’s lives, we have to tackle all three simultaneously with a commitment that is smart, strategic, determined, and long-term. We should measure our success by asking this question: Are more people in more places better able to exercise their universal rights and live up to their potential because of our actions?

Our principles are our North Star, but our tools and tactics must be flexible and reflect the reality on the ground wherever we are trying to have a positive impact.

Now, I don’t need to tell you that challenges we face are diverse and complicated. And there is not one approach or formula, doctrine or theory that can be easily applied to every situation. But I want to outline four elements of the Obama Administration’s approach to putting our principles into action, and share with you some of the challenges we face in doing so.

First, a commitment to human rights starts with universal standards and with holding everyone accountable to those standards, including ourselves. By holding ourselves accountable, we reinforce our moral authority to demand that all governments adhere to obligations under international law. Often the toughest test for governments, which is essential to the protection of human rights, is absorbing and accepting criticism.

Second, we must be pragmatic and agile in pursuit of our human rights agenda – not compromising on our principles, but doing what is most likely to make them real. And we will use all the tools at our disposal, and when we run up against a wall, we will not retreat with resignation or recriminations, or repeatedly run up against the same well, but respond with strategic resolve to find another way to effect change and improve people’s lives. We acknowledge that one size does not fit all.

We are also working for positive change within multilateral institutions. They are valuable tools that, when in their best, leverage the efforts of many countries around a common purpose. So we have rejoined the UN Human Rights Council not because we don’t see its flaws, but because we think that participating gives us the best chance to be a constructive influence.

The third element of our approach is that we support change driven by citizens and their communities. The project of making human rights a human reality cannot be just one for governments. It requires cooperation among individuals and organizations within communities and across borders. It means that we work with others who share our commitment to securing lives of dignity for all who share the bonds of humanity.

We can amplify the voices of activists and advocates working on these issues by shining a spotlight on their progress. We can give them access to public forums that lend visibility to their ideas, and continue to press for a role for nongovernmental organizations in multilateral institutions like the United Nations. NGOs and civil society leaders need the financial, technical and political support we provide.

One of the most important ways that we and others in the international community can lay the foundation for change from the bottom up is through targeted assistance to those in need, and through partnerships that foster broad-based economic development. We will pursue a rights-respecting approach to development – consulting with local communities, ensuring transparency, midwife-ing accountable institutions – so our development activities act in concert with our efforts to support democratic governance.

The fourth element of our approach is that we will widen our focus. We will not forget that positive change must be reinforced and strengthened where hope is on the rise, and we will not ignore or overlook places of seemingly intractable tragedy and despair. Where human lives hang in the balance, we must do what we can to tilt that balance toward a better future. Our efforts to support those working for human rights, economic empowerment, and democratic governance are driven by commitment, not convenience. But they have to be sustained. They cannot be subject to the whims or the wins of political change in our own country.

In the end, this isn’t just about what we do; it is about who we are. And we cannot be the people we are – people who believe in human rights – if we opt out of this fight. Believing in human rights means committing ourselves to action, and when we sign up for the promise of rights that apply everywhere, to everyone, that rights will be able to protect and enable human dignity, we also sign up for the hard work of making that promise a reality.

The Secretary of State’s full remarks are available at www.state.gov/secretary/rm/2009a/12/133544.htm.

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If I Were Attorney-General…

Homelessness and Human Rights: It’s Time to Act

I was delighted to hear that my colleagues on the House Committee on Family, Community, Housing and Youth recently reported on the need for a new piece of legislation, responding to homelessness in Australia.

People experiencing homelessness will continue to be the subject of human rights violations unless my Government enacts a Federal Homelessness Act, which builds on the existing legislative framework in the Supported Accommodation and Assistance Act and extends the right to adequate housing to all Australians. I take this opportunity to commit to the introduction of such legislation.

The Committee’s report considered the detailed reasoning around the benefits of framing homeless services within a human rights-based approach. Such an approach provides real, demonstrative benefits for government, consumers and services alike, and my cabinet colleagues are slowly warming to the idea of a human rights-based approach to government policies and practice.

However, such an approach requires a legislative framework to guide practices and policies, and I will work with both sides of the House to implement real legislative change that will shift the governmental and cultural response to homelessness. (Somewhat naively perhaps, I would like to think that bipartisanship will be a feature of my tenure as Attorney-General, and of our Government’s lasting legacy in this place!) In that vein, the introduction of a Human Rights Act is a key priority in my Government’s agenda, and one that I am proactively and energetically pursuing.

An important component of our newly-embraced human rights approach is the participation and empowerment of people within the community. As Attorney-General, I will ensure that my colleagues and I are able to hear the experiences and ideas of people experiencing homelessness and to try and comprehend the barriers to social inclusion that they experience on a daily basis.

One of the violations that I keep hearing about is the discrimination faced by people experiencing homelessness. The people I have been consulting with repeatedly and consistently tell me that discrimination on the basis of a persons’ social status, particularly in the provision of accommodation and goods and services, remains a daily occurrence for many vulnerable and disadvantaged Australians. I will enact comprehensive equality legislation to, among other things, protect people against discrimination on the basis of their homelessness, their unemployment or their receipt of Centrelink benefits. My Government is serious about social inclusion, and simple protections against discrimination are ‘easy wins’ that we can implement today, that will have lasting and positive effects.

Public and private housing in Australia is unaffordable, inadequate and there is not enough to meet the needs of the most disadvantaged and marginalised. While not strictly falling within my portfolio responsibilities, as Attorney-General I have a responsibility to advocate for the most marginalised and disadvantaged people in our community. I am also fully aware that that the legal system operates within the broader social and economic context of our society. As homelessness rates continue to grow (despite governments’ best efforts), the reality is that we need more housing stock to ensure that people are able to put a roof over their heads and start to address entrenched disadvantage, focusing on the needs of the individual. In leading jurisdictions, this approach to addressing homelessness is called ‘Housing First’ and recognises the interdependence of access to adequate housing, social inclusion and economic participation.

The complex nature of homelessness and the need for individual tailored responses calls for a whole-of-government approach. However, I think that it is important that this whole-of-government approach is also adopted when developing broader legislative and policy frameworks.

There are a number of areas in which disadvantage is perpetuated through inappropriate criminal justice responses to particular acts or behaviors which criminalize poverty and disadvantage. Examples of criminalised behaviors that would better be dealt with under an integrated whole-of-government approach include begging and a range of public space ‘offences’. To my mind, these wrongs demand a public policy response that addresses complex social and economic causes (including lack of access to housing, income support, education and health services), and a coordinated holistic, integrated, multi-agency approach to addressing individual and systemic disadvantage.

Working with the Standing Committee of Attorneys-General, we will contextualise and characterise these issues as social issues rather than criminal issues, and encourage all layers of government to respond accordingly. Criminalising poverty and disadvantage, or criminalising behaviors or acts that will have a disproportionate effect on people experiencing poverty and disadvantage, is just not on.

When announcing the Green Paper on Homelessness on 26 January 2008, then Prime Minister Kevin Rudd made the following comment:

It [homelessness] is something which you can either push to one side and sweep under the carpet or you can say, ‘Actually this is just dead wrong, we need to do something about it’. We don’t believe it is something which a country as wealthy as ours in the 21st century can just ignore.

In introducing a new Homelessness Act (and a Human Rights Act), a rights-based approach across government and dealing with wrongful discrimination and criminalisation of impoverished and disadvantaged Australians, my Government has the opportunity to respond to homelessness as a human rights issue. To do anything else is just dead wrong – not only do we need to do something about it, we will.

James Farrell is Manager of the PILCH Homeless Persons’ Legal Clinic

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Found in HRLRC E-Bulletin, Past Issues

Publications & Resources » Pages

Past Issues

HRLRC Bulletin Vol 45 – January 2010

Opinion

Australia and the Right to Health: Indigenous Health and Access to Healthcare in Detention

The Brennan Report’s Unanswered Question: How to Protect Economic and Social Rights in a Dialogue Model

News

HRLRC Receives High Commendation on Human Rights Day

Australian Human Rights Grants Scheme Doubled and NGO Recipients Announced

UK Human Rights Committee Calls for International Agreement and Innovative Local Initiatives on Business and Human Rights

UN Special Representative on Business and Human Rights Opens Online Consultative Forum on Corporate Responsibility to Protect

New General Comment on the Right to Take Part in Cultural Life

National Charter of Rights Developments

ACT NOW! A Human Rights Act for Australia

Legal Opinion: Social and Economic Rights would be Constitutional and Justiciable under a Human Rights Act

Victorian Charter of Rights Developments

Parole Boards Exempted from Victorian Charter for a Further Four Years

Supreme Court to Consider Interaction of Charter and Commonwealth Legislation

Statements of Compatibility under the Victorian Charter

Victorian Charter Case Notes

Freedom of Information and Security of Prisons

Supreme Court Considers meaning of ‘Proceeding’ to Determine Application of Charter pursuant to Transitional Provisions

Comparative Law Case Notes

Homelessness and the Right to Life, Liberty and Security

Equality and Public Authorities: Court Considers Exclusion of Female Ski Jumpers from Winter Olympics and Paralympics

No Longer Left in the Dark: Right to Municipal Services and the Procedural Fairness Obligations of Electricity Providers

Deportation of Non-Nationals and the Right to Respect for Family Life

Right to Respect for Family Life and Equal Treatment: Fathers’ Right to Custody of a Child Born out of Wedlock

The Prohibition of Ill-Treatment and Prevention of Destitution in a Third State

What is a ‘Child’? Age Determination in Asylum Applications

Balancing Freedom of Expression and the Right to Privacy

HRLRC Policy Work

Human Rights Leadership: Initiatives to Promote Human Rights at Home and Abroad

Enhancing Democracy: A Human Rights-Based Approach to Electoral Reform

Right to a Fair Hearing: Australia’s Judicial System and the Role of Judges

HRLRC Casework

Alice Springs Town Camp Takeover to Proceed

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

Prisoner Denied Access to CCTV Footage of Alleged Assault in Prison

Seminars and Events

Applying Human Rights – RMIT Australian Centre for Human Rights Education

Human Rights Resources

New Issue of Alternative Law Journal – The Architecture of Justice

Human Rights Jobs

Human Rights Roles with the Victorian Government Solicitors Office

Foreign Correspondent

US Secretary of State Outlines a ‘Human Rights Agenda for the 21st Century’

If I Were Attorney-General…

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