Past Issues

HRLRC Bulletin Vol 50 – June 2010

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

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

This edition of the Bulletin, which is proudly sponsored by Mallesons Stephen Jaques, includes:

An opinion piece on ‘Australia’s Role in the Promotion and Protection of Human Rights in the Asia-Pacific
Human Rights News, including in relation to Australia’s potential ‘grave breach’ of the ICCPR as it defies a UN Human Rights Committee interim measures request, the short-listing of two Australian experts for positions as UN Special Rapporteurs, moves by Vanuatu to ratify the Convention against Torture, a major Australian parliamentary committee report on human rights in the Asia-Pacific, the appointment of an Australian Aboriginal lawyer to the UN Permanent Forum on Indigenous Issues, a summary and analysis of the most recent report of the UN Special Representative on Business and Human Rights, and a new Oxfam report on the development of company-level human rights grievance mechanisms
Updates on National Human Rights Framework, including a summary of proposed amendments to modernize the Sex Discrimination Act 1984 (Cth)
Updates on the Victorian Charter of Rights, including an analysis of recent significant Statements of Compatibility
Victorian Charter case notes, including from the Supreme Court (prisoner access to reproductive health care; and statutory interpretation and limitations on rights), and Victorian Civil and Administrative Tribunal (access to child care services)
Comparative law case notes on significant recent human rights decisions from the UN Human Rights Committee (post-sentence detention may be incompatible with prohibition against arbitrary detention), European Court of Human Rights (discrimination on the basis of ethnic identity), Canada (proof of identity requirements and the right to vote), and the UK (right to life and state-funded legal aid in coronial inquest; imposition of unreviewable lifetime reporting requirements for sex offenders breaches right to privacy)
Information about the Centre’s policy work, including in relation to a policy brief on promoting equality and addressing discrimination, the unlawfulness of Australia’s asylum-seeker processing freeze, human rights and counter-terrorism, and human rights in the Asia-Pacific
Updates on the Centre’s casework and litigation, including in relation to access to reproductive health care for a female prisoner, the Centre’s intervention in a coronial inquest regarding access to health care in regional areas, a complaint regarding language rights by a remote Aboriginal community against the Northern Territory government, and access to health care for a psychiatric patient
Details of forthcoming human rights seminars and events, including speeches from the 2010 Human Rights Dinner, and forthcoming conferences on human rights education, international law and public interest law
Information about useful human rights resources, including details of HRLRC in the news, a call for expressions of interest for funding from the Australian Human Rights Grants Scheme, and new resources from the International Service for Human Rights
Information about human rights jobs, including with the Victorian Equal Opportunity and Human Rights Commission, the Australian Human Rights Commission and Amnesty International Australia
Updates on human rights developments at the UN and in international law from our foreign correspondent in Geneva, Claire Mahon (Coordinator of the Project on Economic, Social and Cultural Rights at the Geneva Academy of International Humanitarian Law and Human Rights) and Ben Schokman (Director of International Human Rights Advocacy with the Human Rights Law Resource Centre)
‘If I were Attorney-General’ by Tim McCormack, Professor of Law at Melbourne Law School and Special Adviser on International Humanitarian Law to the Prosecutor of the International Criminal Court, The Hague

Opinion

Australia’s Role in the Promotion and Protection of Human Rights in the Asia-Pacific

Last month, the Rudd Government released a new ‘Human Rights Framework’ for Australia. Most commentary on this Framework has focused on the Government’s failure to commit to a Human Rights Act. This attention is warranted. The enactment of a Human Rights Act was a key recommendation of the National Human Rights Consultation, supported by over 87 per cent of submissions. The basis upon which a Human Rights Act was rejected – that it would be ‘contentious and divisive’ – was spurious and an abdication of leadership.

The focus on a Human Rights Act has, however, resulted in less scrutiny of other omissions from the Framework, most notably that the policy is silent on Australia’s role in promoting human rights in our own neighbourhood – the Asia-Pacific. This silence is all the more surprising given the Rudd Government’s rhetoric on this issue. The Government’s UN Security Council candidacy, for example, spruiks Australia as a ‘principled advocate of human rights for all’, while ‘comprehensive engagement’ with the Asia-Pacific is said to be one of the three key pillars of Australian foreign policy. The new Framework itself commits Australia to ‘promote and protect human rights within our region’, but does not include any concrete actions to give substance to this worthy ambition.

It is therefore timely that, on 3 May, the Australian Parliament’s Committee on Foreign Affairs, Defence and Trade published its own report on Australia’s role in promoting human rights in the Asia-Pacific.

The Committee identified the Asia-Pacific as a ‘diverse and complex region with a mosaic of human rights challenges’. It highlighted gender discrimination and violence, human trafficking, capital punishment, restrictions on freedom of expression and association, and profound poverty, among others. The Committee found that there is a ‘clear need to enhance mechanisms to protect human rights and to redress human rights violations’ and that Australia has a ‘significant role to play’ in the region. It stressed that this role should not take the form of megaphone diplomacy, but rather be ‘sensitive and cooperative’, with Australia following the lead of human rights defenders already working in the region.

The Committee made a number of concrete recommendations for action, some of which should be implemented immediately and some of which should be strengthened.

First, the Committee recommended that the Australian Government should be ‘conscious of its human rights obligations in all of its regional relationships’, including in the area of trade. I would go further. We need to be more than merely ‘conscious’ of human rights in our regional affairs; the promotion and protection of human rights should be both an instrument and key goal of Australian foreign policy. Nowhere are there greater opportunities and imperatives for Australia to commit to a practical, effective human rights-based foreign policy than in the Asia-Pacific. As part of this policy, Australia should undertake Human Rights Impact Assessments as a key aspect of doing business in the region, including in the areas of aid, development, trade, investment, migration, military and security cooperation and the environment. Where appropriate, and as previously recommended by the Committee in its inquiry into our relationship with ASEAN, Australia should ensure that its bilateral agreements – whether in relation to trade or extradition arrangements – include human rights safeguards.

Second, the Committee recommended that AusAID ‘adopt a human rights-based approach’ to its aid and development projects. This is welcome but again should go further, not least by increasing funding for human rights beyond the paltry 0.15 per cent of the aid and development budget it currently comprises.

Third, the Committee recommended that the Australian Government appoint a Special Envoy for Asia-Pacific Regional Cooperation on Human Rights. This Envoy would be tasked to consult with governments and civil society and then report back to the Government within 12 months on how Australia can best support human rights in the Asia-Pacific. Again, this is a laudable recommendation. But it should go further, specifically through the appointment of a permanent, full-time Australian Human Rights Ambassador. Human Rights Ambassadors have long been appointed by many leading states – including the Netherlands, Norway and Sweden – and can assist to promote a coordinated and coherent approach to human rights across all areas of foreign policy. An Australian Human Rights Ambassador could play a valuable role in the region. Geopolitically, Australia is well placed to broker deals and bridge divides between the global North and the global South, and between East and West. Indeed, Australia has played just such a role in the past on crucial human rights issues, including in the negotiation of the Universal Declaration of Human Rights in the 1940s under a Labor Government and the development of effective sanctions against apartheid South Africa in the 1970s and 80s under a Liberal Government. We should build on this bipartisan legacy in the Asia-Pacific.

Parliamentary engagement with human rights is essential to the effective institutional protection of human rights. Recognising this, the Committee recommended that the Australian Government expand its bilateral human rights dialogues in the Asia-Pacific, which are currently limited to China and Vietnam. It recommended strengthening these dialogues by including parliamentary delegates and reporting outcomes to the Australian parliament on an annual basis. Again, this recommendation could be taken further. In particular, the Government should mandate and resource the Joint Parliamentary Human Rights Committee, proposed under the new Human Rights Framework, to consider not only domestic but also regional and international human rights issues. This Joint Committee could also promote international human rights standards and learnings in the Asia-Pacific by convening regional inter-parliamentary human rights dialogues.

The Committee’s fifth recommendation was that Australia adopt a ‘targeted approach’ to promote human rights treaty ratification and implementation in the region, particularly the Pacific. This deserves immediate prioritization. The Pacific has the lowest human rights treaty ratification rate of any global region, notwithstanding that the core human rights treaties provide clear, comprehensive, internationally accepted principles that can enhance governance and improve accountability. As a longstanding signatory to these treaties, and an active participant in the associated UN review processes, Australia should provide Pacific states with technical and financial support to ratify and implement the core human rights treaties and thereby improve human rights and democracy on the ground.

The Committee’s sixth recommendation was that the Australian Government do more to support the ‘vital work’ of civil society in the region, including by establishing a scholarship fund for Asia-Pacific human rights defenders. This is positive, but should be supplemented by substantially increasing Australian funding to NGOs in the region to protect human rights at the grassroots level. While the recent expansion of Australia’s Human Rights Grants Scheme – from about $1 million to $3 million per year – is very welcome, the scheme generally provides short-term, project-based funding only. The scheme should be expanded both in amount (in the Netherlands, for example, the government’s Human Rights Fund will distribute €27.5 million in 2010) and duration, to provide longer-term, recurrent support.

The Committee concluded that ‘Australia should not be prescriptive in what human rights approach or mechanism would best suit the region’, but reiterated that Australia is ‘well placed to foster discussion and progress on a cooperative approach to human rights challenges facing the Asia-Pacific’.

While the release of the Rudd Government’s Human Rights Framework was an opportunity missed, another opportunity to commit to human rights-based policy and action is fast approaching. In January 2011, Australia will go through the UN Human Rights Council’s Universal Periodic Review – a process in which Australia’s human rights record is examined before all 192 UN member states. A commitment to a comprehensive human rights-focused foreign policy – starting with concrete action on human rights in the Asia-Pacific – should be a centrepiece ‘pledge’ made by Australia on this world stage.

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

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News

Australia will Commit ‘Grave Breach’ of Human Rights Obligations if Deportation of Sheikh Proceeds

Australia is at risk of committing a ‘grave breach of its obligations under the Optional Protocol to the ICCPR’ if it proceeds with plans to deport a long-term Australian resident to Iran.

On 21 April, the UN Human Rights Committee sent a request for ‘interim measures’ to Australia, asking that the Government stay the deportation of Iranian-born cleric Mansour Leghaei, who has lived in Australia for more than 16 years, until the Committee has had the opportunity to fully consider and determine his complaint. A request for interim measures is generally made to avoid ‘irreparable damage’ to a complainant while their communication is considered by the Committee. Such requests are typically made in death penalty and non-refoulement cases.

Despite the Committee’s urgent request, the Federal Government has announced its intention to proceed with the deportation. Dr Leghaei’s wife and daughters, who are Australian citizens, will not be deported.

The Committee considers failure to comply with such requests to constitute a ‘grave’ human rights breach. In a case against the Philippines in which such a request was ignored, the Committee stated:

Implicit in a State’s adherence to the Optional Protocol is an undertaking to cooperate with the Committee in good faith…A State Party commits grave breaches of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication…Flouting of [interim measures requests] undermines the protection of Convention rights.

This is the first time that Australia has defied a UN Human Rights Committee request for interim measures and is plainly incompatible with its commitment in the new ‘Human Rights Framework’ to ‘respect the core human rights treaties to which Australia is a party’.

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

Australian Experts Shortlisted for Positions as Special Rapporteurs of the UN Human Rights Council

Two Australian human rights experts have been shortlisted for positions as Special Rapporteurs of the UN Human Rights Council. Special Rapporteurs are independent experts mandated to promote and protect international human rights.

Chris Sidoti has been shortlisted for the position of Special Rapporteur on the Right to Education. Chris is an international human rights expert and has formerly worked as Director of the International Service for Human Rights, Australian Human Rights Commissioner and Australian Law Reform Commissioner. He is an Adjunct Professor at the University of Western Sydney and Griffith University. As Australian Law Reform Commissioner he was responsible for inquiries into education for children in rural and remote areas, and access to education for asylum seekers.

Carolyn Evans has been shortlisted for the position of Special Rapporteur on Freedom of Religion or Belief. Carolyn is a Professor of Law and Associate Dean at Melbourne Law School. She is an internationally recognised expert on religious freedom. Carolyn is the author of Religious Freedom under the European Court of Human Rights (2001) and co-editor of Religion and International Law (1999); Mixed Blessings: Laws, Religions and Women’s Rights in the Asia-Pacific Region (2006) and Law and Religion in Historical and Theoretical Perspective (2008).

Vanuatu to become First Pacific Island State to Ratify Torture Convention

Vanuatu is set to become the first Pacific Island nation to ratify the Convention against Torture.

In a landmark announcement, the Minister for Justice and Social Welfare, Bakoa Kaltongg, committed Vanuatu to signing the Convention before the end of the year. ‘I am honoured to announce that our government has decided to join 138 other nations of the world and be the first Pacific Island to ratify the Convention Against Torture before the end of the year.’

These sentiments were also echoed by the President of Vanuatu, Iolu Johnson Abil, who said ‘We must recognise that acts of torture have been happening in our country; some of the conditions under which Vanuatu citizens have been deprived of their liberty can legitimately be described as below the requirements of international standards. My government and I are working today for the improvement of detention conditions, as well as the renovation of our prisons.’

The announcements come at the conclusion of a one day meeting on the prevention of torture jointly organised by the Vanuatu Ministry of Justice and Community Services and the OHCHR and also attended by the UN Special Rapporteur on Torture, Professor Manfred Nowak, who said ‘I am encouraged by their commitment to the CAT and believe that Vanuatu can become a leader in the region on combating and preventing torture. The Pacific has the lowest ratification rates in the world on human rights treaties and the commitment of the Vanuatu Government to sign CAT is encouraging’.

Office of the High Commissioner for Human Rights, Regional Office for the Pacific

Major Australian Parliament Report on Human Rights in the Asia-Pacific: Challenges and Opportunities

On 3 May 2010, the Australian Parliament’s Human Rights Sub-Committee published a much anticipated report on Australia’s role in promoting and protecting human rights in the Asia-Pacific region, entitled Human Rights in the Asia-Pacific: Challenges and Opportunities.

The Committee identified that the ‘Asia-Pacific is a diverse and complex region with a mosaic of human rights challenges’ and found that there is a ‘clear need to enhance mechanisms to protect human rights and to monitor and redress human rights violations’. The Committee further found that, while Australia has a ‘significant role to play’ in promoting and protecting human rights in the region, Australia must also be ‘sensitive and cooperative in its approach and action on human rights matters’.

Consistent with evidence to the inquiry, the Committee stated that for Australia to propose possible models for an Asia-Pacific regional human rights mechanism would be ‘premature’ and that Australia should instead ‘take its lead from organisations already established in the region, seek to address issues in which Australia has expertise or a shared interest, and infuse human rights standards and practices into relationships within the Asia-Pacific region’.

Consistent with these observations and findings, the Committee recommended, among other things, that:

the Australian Government should be ‘conscious of its human rights obligations in all of its regional relationships’, including in the areas of aid, trade and investment;
AusAID should ‘adopt a human rights-based approach to guide the planning and implementation of development projects’;
the Australian Government should continue and expand its bilateral human rights dialogues with states in the Asia-Pacific – including China and Vietnam – and seek to strengthen these dialogues through the inclusion of parliamentary delegates and by reporting their outcomes to parliament on an annual basis;
Australia should adopt a ‘targeted approach’ to ‘improve the level of ratification of core human rights treaties in the Asia-Pacific, and to assist countries in meeting their obligations once they are parties to these important treaties’, including through education and the provision of financial and technical support;
the Australian Government should support the ‘vital work’ being done by NGOs and civil society in the promotion and protection of human rights in the region, including by establishing a scholarship fund to enable human rights defenders to attend human rights courses and programs in Australia; and
the Australian Government should appoint a Special Envoy for Asia-Pacific Regional Cooperation on Human Rights to engage in regional discussions and consultations on how Australia can best support human rights in the Asia-Pacific. This Special Envoy should report to the Government within 12 months.

The Committee concluded that it was ‘mindful that Australia should not be prescriptive in what human rights approach or mechanism would best suit the region’, but reiterated that Australia is ‘well placed to foster an opportunity for discussion and progress on a cooperative approach to human rights challenges facing the Asia-Pacific region’.

The Committee’s report is at www.aph.gov.au/house/committee/jfadt/asia_pacific_hr/report.htm.

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

Aboriginal Australian Academic Selected for UN Permanent Forum on Indigenous Issues

Megan Davis, Director of the Indigenous Law Centre and a Senior Lecturer in Law at UNSW, has been appointed to the UN Permanent Forum on Indigenous Issues. The Permanent Forum is an advisory body to the UN Economic and Social Council with a mandate to discuss and advise on Indigenous issues related to economic and social development, culture, the environment, education, health and human rights. While Ms Davis was nominated by the Australian Government, she will serve as an independent expert.

Welcoming the appointment, the Australian Government stated that this ‘is the first time the Australian Government has nominated an Indigenous person to a UN body’. The Government said that Ms Davis ‘is a leading scholar on Indigenous legal rights and international law’, ‘has been active in the United Nations as an advocate for Indigenous rights, particularly for women’ and ‘is an outstanding candidate for the position’.

UN Special Representative Publishes Major Report on Further Developing Business and Human Rights Framework

In April 2010, the UN Special Representative on Business and Human Rights, Professor John Ruggie, released a report providing concrete guidance and recommendations on the UN framework on business and human rights.

The UN framework is increasingly being referenced by governments, business, international organisations and other stakeholders. The latest report provides an indication of the issues and recommendations likely to feature in the Special Representative’s final report, which is due in 2011. The recommendations proposed in this report may impact on the legal and policy standards with which business is required to comply.

Background

Appointed to the role in 2005, the Special Representative’s performance of his initial three-year mandate, which focused on identifying expectations and obligations business faces in respect of human rights, resulted in the ‘protect, respect and remedy’ framework (the ‘UN framework’).

The UN framework, which addresses the governance gaps between the impact of corporations on human rights and the management by states, business and societies of the consequences of those impacts, was unanimously endorsed by the Human Rights Council in 2008. It rests on three pillars:

the state duty to protect against human rights violations within their jurisdiction, including those involving corporations;
the corporate responsibility to respect human rights; and
access by victims to effective remedies (both judicial and non-judicial).

In 2008, the Special Representative’s mandate was extended for a further three years, during which period he is tasked with ‘operationalising’ and ‘promoting’ the UN framework.

The third report: progress towards operationalising and promoting the UN framework

The latest report, released by the Special Representative on 9 April 2010, details the progress he has made in operationalising this framework, and in doing so, provides further guidance to corporations on the steps that can be taken to meet their responsibility to respect human rights.

As reported, the Special Representative’s efforts over the past 12 months have included working to map corporate law and securities regulation relevant to human rights in more than 40 jurisdictions (Allens Arthur Robinsons’ contributions to these reports included Australia, China (which includes Hong Kong), Indonesia, New Zealand and Papua New Guinea: see www.business-humanrights.org/), considering the due diligence contents of the corporate responsibility to respect human rights, and further developing and testing the UN framework’s principles on company-based grievance mechanisms.

The report outlines its findings on each pillar of the UN framework made by the Special Representative’s work to date.

The state duty to protect

The report identifies five priority areas to be addressed by states to achieve greater policy coherence and effectiveness. They comprise:

safeguarding the state’s ability to meet its human rights obligations;
considering human rights when they engage with business;
fostering corporate cultures respectful of human rights;
devising innovative policies to guide companies operating in conflict-affected areas; and
examining extraterritorial jurisdiction in respect of corporate impacts on human rights overseas.

The Special Representative has studied the impact of bilateral investment treaties and host government agreements, and notes the potential risk that states may, through these agreements, limit their ability to meet their own obligations. He encourages states to ensure that such agreements combine robust investor protections with adequate allowances for public interest measures, including human rights. Professor Ruggie also notes that few export credit agencies explicitly consider the human rights impacts of ventures they support, even though the risks of such ventures may be high.

The Special Representative proposes that corporate culture be addressed through corporate social responsibility policies, reporting requirements, the statutory content of directors’ duties, and reform of criminal law and process to expressly recognise the concept of ‘corporate culture’ as a factor at the prosecuting and/or sentencing stage. Professor Ruggie has also convened a group of states in informal brainstorming sessions to generate innovative and practical approaches to addressing the impacts of corporate activity in conflict-affected areas.

The corporate responsibility to respect

The Special Representative notes that companies often lack a strategic concept for addressing human rights systematically, preferring ad hoc CSR initiatives that are typically detached from their internal control and oversight systems.

In this report, Professor Ruggie provides guidance as to the scope of the corporate responsibility to respect human rights, indicating that it is determined with reference to the direct and indirect impacts of the company. He recommends that companies look to the core international human rights treaties and the core convention of the International Labour Organisation as the baseline reference for human rights that may be relevant to their operations.

The Special Representative confirms that various elements of the corporate responsibility to respect human rights will be required under domestic law, depending on the jurisdiction of operation. In consideration of this legal variance, the Special Representative recommends that companies should adopt a high-water mark compliance approach to human rights violations, even where precise legal standards are not fully defined or enforced, such as when operating in weak governance zones and where there is a risk of corporate complicity in international crime.

Professor Ruggie has identified the exercise of human rights due diligence as a process that may provide an appropriate approach to the corporate responsibility to respect human rights and management of the associated risks. He notes that human rights due diligence comprises several components:

a statement of policy;
periodic assessment of actual and potential human rights impacts of the company’s activities and relationships;
integration of these commitments and assessments into internal control and oversight systems; and
performance tracking and reporting.

Access to remedy

The Special Representative has focused on three types of grievance mechanisms, company-level mechanisms and judicial and non-judicial state-based mechanisms, and has considered ways in which these can be complemented by initiatives undertaken by other stakeholders.

At the company level, Professor Ruggie has identified principles with which all non-judicial grievance mechanisms should comply to ensure credibility and effectiveness. These include legitimacy, accessibility, predictability, equitability, rights compatibility and transparency. In this report, he suggests that company-level mechanisms should preference dialogue and engagement over adjudication.

The Special Representative notes that non-judicial state-based mechanisms are often overlooked, and that national human rights institutions and national contact points (which address complaints under the OECD Guidelines for Multinational Enterprises) may facilitate achievement of these objectives.

The Special Representative also considered the challenges presented by corporate human rights impacts to the effective operation of judicial systems. He notes that these challenges include the attribution of responsibility among members of a corporate group, jurisdictional issues relating to foreign operations of multinational corporations, and the resources and expertise required for investigation of large companies. He also discusses the practical obstacles restricting access to these remedies, which include costs, issues related to bringing representative and aggregated claims and disincentives to providing assistance to victims.

The Special Representative has established the online resource, BASESwiki (see http://basewiki.org/), which supports information-sharing, learning and expertise in the pursuit of more effective grievance mechanisms across the world. He is also conducting a feasibility study of the potential of new international networked mediation arrangements to enhance access to sustainable dispute resolution in business and human rights.

Conclusion

The third report of the Special Representative makes progress towards operationalising and promoting the UN framework, gives guidance and clarification as to the corporate responsibility to respect human rights, and provides a useful discussion of a number of issues concerning business and human rights.

This report provides valuable guidance as to the likely direction of legal and policy developments, both domestically and internationally, and the possible impact on corporations of these developments. It also provides guidance as to the standard of conduct that corporations are, and may in future be, expected to meet.

Further guidance can be expected in the Special Representative’s final report, which is due to be presented to the UN Human Rights Council in 2011.

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

Business and Human Rights: New Report on Company-Level Grievance Mechanisms

Oxfam Australia has released a new report to guide the design and implementation of company-level grievance mechanisms. Such mechanisms can ensure that companies ‘do no harm’ by helping companies become aware of, prevent and remedy adverse human rights impacts.

Australian mining companies operating overseas face challenges in relation to human rights, especially those that operate in conflict and post-conflict zones, and where governance is weak. The Oxfam report describes the role effective grievance mechanisms can play in dealing with some of these challenges, and in establishing and maintaining good corporate–community relationships. This report focuses on mining; however, the resources it contains are equally applicable to other large-scale projects, including dams and agribusiness development.

The report provides key principles, case studies and other resources to assist mining companies to design and implement effective, human rights-compatible grievance mechanisms. Oxfam Australia hopes it will provide guidance for mining companies as they develop their own company-level grievance mechanism, or strengthen or formalise existing processes and ways of working.

This report can also be used by women and men from mine affected communities, and encourages their informed and meaningful participation in the design and operation of local-level grievance mechanisms.

The report is available at www.oxfam.org.au/resources/filestore/originals/OAus-GrievanceMechanisms-0410.pdf.

Serena Lillywhite is Mining Advocacy Coordinator and Christina Hill is Mining Advocacy Officer with Oxfam Australia

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National Charter of Rights Developments

Attorney-General Announces Reforms to Strengthen Sex Discrimination Laws

On 6 May, the Federal Government responded to the report by the Senate Standing Committee on Legal and Constitutional Affairs into eliminating discrimination and promoting gender equality.

Amongst the reforms to the Sex Discrimination Act 1984 (Cth) announced by the Government are:

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

These changes are welcome, but do not respond to one of the Committee’s key findings, namely that ‘the most fundamental limitation of the Act is its reliance on enforcement through individuals pursuing complaints’. This recognition demands a transformation in the way our laws deal with discrimination and promote gender equality; tinkering around the edges is not enough.

The more progressive and robust of the Senate Committee’s recommendations have been deferred for consideration in the context of the Federal Government’s recently announced commitment to ‘harmonise and consolidate Commonwealth anti-discrimination laws to remove unnecessary regulatory overlap, address inconsistencies across laws and make the system more user-friendly’ (the ‘Consolidation Project’). These recommendations include:

the introduction of a general prohibition of discrimination in all areas of public life to replace the ‘patchwork’ coverage of the current Act; and
broadening the powers of the Sex Discrimination Commissioner to investigate instances of systemic sex discrimination and allowing remedies such as corrective and preventative orders.

The recommendations of the Senate Committee should not be allowed to gather dust like the string of reports over the last 20 years which have similarly called for stronger laws that actively promote substantive equality.

The HRLRC’s paper on ‘Promoting Equality and Addressing Discrimination in Australia’, intended to inform the Consolidation Project, is available at www.hrlrc.org.au/content/topics/asia-pacific/setting-the-human-rights-agenda/.

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

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Victorian Charter of Rights Developments

Statements of Compatibility under the Victorian Charter

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

Below is an analysis of recent significant Statements.

Crimes Legislation Amendment Bill 2009

The Crimes Legislation Amendment Bill 2009 amends the structure of the penalty provisions for the offence of sexual penetration of a child in s 45 of the Crimes Act 1958 (Vic).

Importantly, the Bill:

applies the maximum penalty (25 years’ jail) to offences involving children under the age of 12; and
abolishes the defences of similar age, marriage, reasonable mistake as to age, and consent where children under 12 are involved.

Previously, the maximum penalty provisions applied only to offences involving children under the age of 10.

The purpose of the amendments is to ensure that the penalty provisions appropriately reflect the vulnerability of pre-teen children and the community’s expectations that sexual offences against such young children are treated very seriously.

Although the Statement of Compatibility does not identify any human rights issues raised by the amendments, the Scrutiny of Acts and Regulations Committee raised compatibility concerns with two rights protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic), namely:

fundamental justice; and
the protection of children.

A defendant’s rights to fundamental justice may be engaged by denying a defence of reasonable mistake of age where a child aged 10 or 11 is involved. Previously a defendant was not liable if the court was satisfied that he or she believed on reasonable grounds that the child was aged 16 or older. International case law is divided on the issue, with the highest courts in Canada and Ireland holding that the denial of such a defence is incompatible with a right to fundamental justice, whilst the highest courts in Hong Kong and the United Kingdom rejected the same arguments.

The Bill may also be criticised as being incompatible with the Charter right requiring the protection of children, by abolishing the defence of similar age for offences involving children under 12. Previously a defence was open where a defendant was no more than 2 years older than the child. The Committee was concerned that the Bill did not appropriately address the situation where the defendant is also an adolescent. It expressed the concern that exposing a 12 or 13 year old defendant to potential liability for an offence ‘attaching a high stigma that carries a 25 year penalty and life-long consequences may engage [the defendant’s] Charter right to such protection as is in their best interests’.

The Committee observed that abolishing these defences was not necessary to achieve the Bill’s overall aim. The Committee suggested that Parliament could amend the Bill to better accord with the Charter rights by providing that children aged 13 or under could not be convicted of a child sexual offence except in special circumstances. Canadian law, for example, exempts children aged 12 and 13 from liability for a child sexual offence except where there is a relationship of dependency, trust or exploitation between the defendant and the child.

Jessica Bowman, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

Child Employment Amendment Bill 2010

The Child Employment Amendment Bill 2010 makes amendments to the Child Employment Act 2003 (Vic) to improve the operation of child employment regulation. In particular, the Bill aims to:

amend the definition of employment in the Act to ensure a greater focus on protection of children under the age of 15 years in employment;
improve the process of applying for and issuing permits;
apply provisions of the Working with Children Act 2005 (Vic) to the supervision of children in employment; and
make other changes to improve the operation of the Act.

Human rights issues are raised by a number of the provisions of the Bill, which are outlined below.

Protection of families and children

The Bill inserts a specific purpose into the Act, namely protecting children under the age of 15 from performing work that could be harmful to their health or safety or their moral or material welfare or development, or their attendance at school or capacity to benefit from instruction. This will replace the existing requirement that ‘the child is fit to be engaged in the proposed employment’. The Bill also streamlines permit application processes and adopts working-with-children checks for supervisors. These provisions directly promote the right of protection of families and children conferred by s 17 of the Charter.

The Attorney-General acknowledged in the Statement of Compatibility tabled with the Bill that the amendments do not significantly alter the existing protections in the Act, and the adoption of the working-with-children check will simply increase current protections.

However, the Scrutiny of Acts and Regulations Committee noted that no clear explanation for these changes has been provided. In particular, the replacement of the requirement that ‘the child is fit to be engaged in the proposed employment’ with the insertion of the word ‘safety’ in the new clause may not be an equivalent test.

The right to a fair hearing

The new ss 18 and 18A of the Act provide circumstances in which the Secretary may vary or cancel a permit, consistent with the current exercise of an existing power. Again, according to the Statement, these amendments do not confer new powers but simply clarify when such powers may be used.

However, these clauses raise an issue of the right to a fair hearing pursuant to s 24 of the Charter. It was noted in the Statement that the Act is based on a child employment permit system, where a permit must be obtained for a particular employment of a particular child prior to commencement. Further, s 24 is not limited because employers who obtain permits engage voluntarily in a strictly regulated sphere of activity. According to the Statement, a decision to cancel or vary a permit will continue to be subject to judicial review. Therefore, when considered in its entirety, the Bill does not limit the right to a fair hearing under the Charter.

The new s 50A of the Act deems a corporate officer liable of a corporate crime if they knew of, or knowingly authorised or permitted, a crime. Nothing was said in the Statement about this. According to the Committee, the new s 50A may engage and limit Charter rights in s 24 (right to a fair hearing) and s 25 (presumption of innocence). The Committee noted that it will write to the Attorney-General seeking further information and query why this provision differs from nearly all other Victorian corporate officer liability provisions.

Right to privacy

Section 13 of the Charter provides that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with. The Bill engages the right to privacy on several occasions. For instance, an employer is required to obtain the consent of a child’s parent or guardian to a proposed employment (s 8) and persons who supervise a child are required to disclose personal information to the Department of Justice and their employers (s 19).

It was noted in the Statement that given the important protections these safeguards provide to working children, the Bill does not arbitrarily or unlawfully interfere with privacy. The objective of protecting vulnerable children in employment is consistent with the Charter rights.

Recognition and equality before the law

The Bill, in concert with the Act, limits the right of recognition and equality before the law pursuant to s 8 of the Charter because it provides for different treatment of persons in the same or similar circumstances based on their age. However, according to the Statement this limitation is reasonable and justifiable as it ensures that children are prevented from undertaking work that is harmful to their health, safety and welfare or prejudicial to their attendance at school.

Ashleigh Ellis, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

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Victorian Charter Case Notes

Supreme Court Orders Speedy Trial to Determine Prisoner’s Eligibility to Access IVF Treatment under Victorian Charter

Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010)

The Supreme Court of Victoria has rejected an application by a female prisoner for an injunction restraining the Secretary of the Department of Justice from refusing to grant the permits and approvals necessary to access IVF treatment, contrary to the Victorian Charter of Rights. The Court did, however, order that the matter be expedited and brought on for speedy trial within a month given the urgency of the issues.

Facts

The plaintiff, Kimberley Castles, is a 45 year old woman currently held as a low security prisoner at Tarrengower prison. She is serving a three year sentence, commencing November 2009, for social security fraud. Prior to her imprisonment, Ms Castles was undertaking IVF treatment. The course of treatment was interrupted by her imprisonment and she will become ineligible for IVF when she turns 46 in December 2010. Her chances of becoming pregnant diminish every month without treatment.

Following her imprisonment, Ms Castles made repeated requests to the Secretary of the Department of Justice to grant the approvals necessary for her to continue IVF treatment while a prisoner. When the Secretary failed to make a decision or grant the approvals, Ms Castles sought an injunction to restrain the Secretary from ‘continuing to neglect, fail or refuse to grant the permits and approvals necessary to access IVF treatment’.

In seeking this order, Ms Castles relied on her rights under the Charter of Human Rights and Responsibilities to privacy and family (s 13(a)), to equality and non-discrimination (s 8), to humane treatment in detention (s 22) and to protection of family and children (s 17) and the Secretary’s correlate duty, in determining whether to grant the necessary approvals, to properly consider and act compatibly with these human rights (s 38). Ms Castles also relied on provisions of the Corrections Act and the common law and fiduciary duties owed to her as a prisoner.

Decision

Justice Osborn held that there was a serious issue to be tried in respect of the rights, but that the balance of convenience did not favour the grant of the injunction. The Court did determine, however, that the matter was ‘deserving of expedition’ and ordered that it be ‘brought on for hearing within one month’.

The Court arrived at the conclusion than an interlocutory injunction should not be granted for a number of reasons, including that:

The Secretary ‘accepted that the plaintiff is entitled to determination of her application for a permit in accordance with law and the defendants have identified specific factual considerations properly regarded as relevant to the exercise of that discretion.’
The plaintiff is not presently legally entitled to IVF treatment under the Assisted Reproductive Treatment Act 2008, as she has not yet received the necessary criminal record and child protection checks.
The ‘operational considerations and constraints’ raised by the defendants, including in relation to prison safety, security and ‘the provision of adequate facilities’ are matters of ‘serious public importance’. Justice Osborn considered that the Court is not equipped to ‘second guess the Secretary’s exercise of discretion in circumstances where it appears on the evidence that it was open to her [to make the decision she did], and she is in a position to assess operational issues, which the Court is not’.
‘One their face’, the operational considerations referred to above ‘fall within the category of matters comprehended by s 38(2) of the Charter’ (which provides that a public authority is not bound to act compatibly with human rights if, as a result of a statutory provision or otherwise under law, the public authority could not reasonably have acted differently or made a different decision).
On the material before the Court, the case that the Secretary was ‘bound to make a decision contrary to that which she has made, is weak’.
A speedy trial of the matter can be fixed and liberty to apply for further orders can be reserved to the parties.

Accordingly, the matter was fixed for trial on 1 June 2010.

The decision is available at www.austlii.edu.au/au/cases/vic/VSC/2010/181.html.

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

The Centre is acting for Ms Castles, together with Blake Dawson, Ron Merkel QC and Michael Borsky of Counsel.

Statutory Interpretation and Limitations on Rights

In the matter of a Major Review of Derek Ernest Percy [2010] VSC 179 (31 March 2010)

Derek Percy, the only remaining prisoner in Victoria who was found not guilty of murder on the grounds of insanity, sought to have his custodial supervision order varied pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) so that he could be transferred from Port Phillip prison to a forensic psychiatric facility. Mr Percy asked Coghlan J, in making his decision, to have regard to the Charter of Human Rights and interpret the Act in a way that is compatible with human rights.

The Attorney-General argued the provisions of the Act already recognised the human rights of Mr Percy and the Charter was therefore not engaged. In making this argument, the Attorney-General relied on s 39 of the Act which states:

In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.

Coghlan J was persuaded by the Attorney-General’s argument and held that, provided he acted in accordance with s 39 of the Act, he would be recognising and having regard to Mr Percy’s human rights.

With respect, this analysis stands in contrast with the more rigorous approach required following the Victorian Court of Appeal’s decision in R v Momcilovic [2010] VSCA (17 March 2010) and failed to adequately to consider whether any breach of Mr Percy’s human rights under the Charter was demonstrably justified as required by s 7 of the Charter.

Facts

On 17 April 1970, Mr Percy was found not guilty of the murder of a 12 year old girl on the grounds of insanity. He was ordered to be detained until ‘the Governor’s pleasure became known’ and remained in such detention until 1998 at which time the Act came into effect and he was deemed to be the subject of a custodial supervision order.

As required by the Act, a major review into Mr Percy’s custody was undertaken in 2009 and Mr Percy asked His Honour to consider:

whether his right to humane treatment when deprived of liberty (protected under s 22 of the Charter) is and would continue to be breached by his present and any further incarceration at Port Phillip Prison as a result of the extension of his existing custodial supervision order;
whether his present or any further incarceration at Port Phillip Prison as a result of the extension of his existing custodial supervision order is and would be a continuing unreasonable limitation of his rights given the Department of Human Services, the Office of Corrections and the Department of Justice have an obligation to provide the least restrictive means available to achieve the purpose of the Act (as required by s 7 of the Charter); and
whether the Act should be interpreted in a way that is compatible with human rights.

Mr Percy did not seek a declaration of inconsistency with the Charter.

Relying on s.39 of the Act, the Attorney-General argued the provisions of the Act already recognised the human rights of Mr Percy and the Charter was therefore not engaged.

Decision

His Honour accepted that s 32 of the Charter required him to interpret the provisions of the Act in a way that was compatible with human rights.

To that end though, His Honour was persuaded by the Attorney-General’s argument and held that, provided he acted in accordance with s 39 of the Act, he would be recognising and having regard to Mr Percy’s human rights, thereby discharging his obligations under s 32 of the Charter.

In deciding whether Mr Percy’s detention was consistent with s 39 of the Act, His Honour noted the most powerful argument in favour of Mr Percy’s application was that a non-convicted person, if he was to be detained, should be detained in a therapeutic environment in a hospital.

However, His Honour was not satisfied the detention in a forensic psychiatric facility would be less restrictive than being held in prison. Further, there was no reason to believe the quality of treatment Mr Percy would receive in the forensic psychiatric facility would be more advantageous to Mr Percy than that available in the prison system.

Accordingly, the custodial supervision order was confirmed and the application to have the place of custody varied was denied.

Application of the Victorian Charter

Whist His Honour acknowledged the application of s 32 of the Charter and his obligation to interpret the provisions of the Act in a way that was compatible with human rights, he failed, with respect, to employ the methodology set out by the Victorian Court of Appeal in Momcilovic when determining whether s 39 of the Act breached any of Mr Percy’s Charter rights.

Instead of (a) interpreting the relevant provision by applying s 32 of the Charter in conjunction with other rules of interpretation, (b) considering whether that interpretation breached a human right protected by the Charter, and (c) considering whether any limitation was demonstrably justified, His Honour simply stated that s 39 of the Act recognised Mr Percy’s human rights and, provided His Honour acted in accordance with s 39 of the Act, His Honour would satisfactorily discharge his duties under the Charter. With respect, this does not accord with the Court of Appeal’s view that the Charter requires courts and tribunals to ‘explore all possible interpretations of the provision(s) in question, and adopt that interpretation which least infringes Charter rights’.

His Honour justified his approach by stating that, even if a provision of the Act engaged Charter rights, in carrying out the balancing exercise required by s 7 of the Charter, the presence of s 39 would lead to the same conclusion. Again, this is incompatible with the Court of Appeal’s approach to s 7 which stresses that any limitations on rights should be demonstrably justified with clear, cogent and persuasive evidence.

The decision is available at www.austlii.edu.au/au/cases/vic/VSC/2010/179.html.

Susanna Kirpichnikov is a lawyer with Lander & Rogers

VCAT Considers Relevance of Charter to Availability of Payments for Childcare from Transport Accident Commission

Michelle Dawson v Transport Accident Commission [2010] VCAT 796 (13 May 2010)

Facts

Ms Dawson was seriously injured in a car accident on 13 October 2005. As a result of her injuries Ms Dawson received a number of therapies in accordance with her entitlements under s 60 of the Transport Accident Act 1986 (Vic), funded by the Transport Accident Commission (TAC). After having children, Ms Dawson requested that the TAC pay for child care services to enable her to continue rehabilitation. The TAC denied her request and Ms Dawson filed an application for review with VCAT.

Ms Dawson submitted that payment of childcare services was a necessary part of her rehabilitation and that such costs should be included in rehabilitation services or disability services awardable under s 60 of the Transport Accident Act.

Ms Dawson further submitted that the Transport Accident Commission failed to take the Charter of Human Rights and Responsibilities into account when making the decision not to grant child care expenses; in particular that the Commission failed to interpret the Act compatibly with human rights (as required by s 32 of the Charter) and failed to give proper consideration to or act compatibly with human rights (contrary to s 38 of the Charter). She relied on the human rights protected by s 17 (protection of families and children), s 8 (equality before the law) and s 13 (right to privacy) of the Charter, contending that the refusal to fund child care ‘breached [the] right to enjoyment of family life’, that her personal integrity and quality of life was being ‘severely compromised’ and that the TAC’s interpretation of the Act breached her right to equality before the law by ‘failing to allow for individual circumstances to be taken into account’.

In response, the TAC contended, first, that s 38 of the Charter did not apply as child care expenses are either payable or not payable under s 60 of the Act as a matter of construction rather than at the consideration or discretion of the TAC and, second that, s 32 of the Charter could not modify the interpretation of s 60 of the Act as none of the rights relied upon by Ms Dawson were, in fact engaged. According to the TAC, s 32 of the Charter only influences the construction of a statutory provision ‘to the extent that a right properly arises or is engaged in the circumstances’. In the present case, the TAC argued that Ms Dawson was, in effect, seeking to invoke a right to child care, which is not a right protected by the Charter.

Decision

Statutory Interpretation

Deputy President Macnamara initially set out to ascertain the true meaning of the relevant paragraphs in the Transport Accident Act. The relevant provisions were interpreted in favour of the TAC. VCAT then considered whether s 32 of the Charter would change this interpretation. VCAT found that no relevant human right was engaged in this case and hence that s 32 of the Charter did not change the interpretation of the relevant paragraphs in the TAA. With respect, VCAT’s approach to the content and engagement of rights in this case was narrow and not ‘broad and generous’ as required by human rights jurisprudence (cf Kracke v Mental Health Review Board [2009] VCAT 646, [30]).

Having formed this view, VCAT concluded that s 38 of the Charter ‘adds nothing’ in the case. According to VCAT, what was in issue was the proper construction of a statutory directive which did not afford any discretion, as such, and s 38(2) ‘would immunise the TAC from any liability under s 38’. Section 38(2) provides that the obligation to act compatibly with human rights under s 38(1) does not apply if, ‘as a result of a result of a statutory provision…the public authority could not reasonably have acted differently’.

Right to equality before the law: s 8

Section 8 of the Charter provides that every person is equal before the law. As to Ms Dawson’s claim that the TAC’s approach was arbitrary in its refusal to allow a flexible interpretation of ‘disability services’ and ‘rehabilitation services’, VCAT stated that using s 8 of the Charter as an ‘interpretation tool by s 32’ would not alter the conclusion.

Protection of families and children: s 17

Deputy President Macnamara examined the cases relied on by Ms Dawson as to an alleged breach of her right to the enjoyment of family life. In J v London Borough of Enfield [2002] EWHC (Admin) it was concluded that a separation of child and mother was offensive to art 8 of ‘the corresponding provision in the European Convention’. The Deputy President held that there was no risk of a separation between Ms Dawson and her children in the present case and hence that the right is not engaged. In R v London Borough of Enfield Ex Parte Bernard [2002] EWHC 2282 (Admin) it was held that positive measures must be taken to protect a normal private and family life for particularly vulnerable groups (such as the ‘largely disabled’), a description Deputy President Macnamara found not applicable to Ms Dawson.

The Deputy President held that a denial of any monetary entitlement, at least where a person of modest means is concerned, has the potential to affect that person’s family life…’ but pointed out that ‘care needs to be taken in applying European authorities based on the European Convention to the Victorian Charter’. The Deputy President held that there is a ‘clear’ difference between s 17 of the Charter and art 8 of the European Convention and that ‘a simple failure to pay a monetary benefit under a compensation scheme does not engage s 17 of the Victorian Charter’.

Right to privacy: s 13

Section 13 of the Charter provides the right ‘not to have … privacy, family, home or correspondence unlawfully or arbitrarily interfered with’. After considering the issues dealt with in a number of cases referred to by Ms Dawson, the Deputy President held that:

The distance between these sorts of cases and the matters before the Tribunal in the present proceeding is obvious. I am at a loss to understand how refusal of a monetary entitlement can amount to a challenge to one’s right to privacy.

The Deputy President concluded that ‘[t]he Charter, which generally does not extend to economic and social rights, surely does not seek to reach this sort of situation. No relevant human right is engaged’. In conclusion, the Deputy President held that s 32 of the Charter did not change the interpretation of the Transport Accident Act, a ‘conclusion that necessarily immunises the Commission from any liability under s 38 of the Charter.’

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

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Comparative Law Case Notes

Right to State-Funded Legal Aid in Coronial Inquest: Legal Aid Funding May be Necessary for State to Discharge Investigative Obligation

Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)

Article 2 of the European Convention of Human Rights provides that the right to life is a fundamental human right that shall be protected by law.

European jurisprudence has interpreted art 2 as imposing a duty on the state to provide a mechanism for effective investigations into certain deaths. That mechanism includes coronial inquests.

The main issues in this case were whether the duty arising under art 2 applied in circumstances where legal aid funding for legal representation for family members of the deceased at a coronial inquest had been sought, and whether that duty had been breached by the state denying such funding.

Facts

R (Humberstone) v Legal Service Commission was an application for judicial review from a decision of the Legal Services Commission not to recommend an application for legal aid funding to the Lord Chancellor for representation of a mother, whose child’s death was being investigated by the Coroner.

Dante Lee Kumara died in hospital from a severe asthma attack on 1 July 2008. There were complex and conflicting accounts as to the cause of Dante’s death. Dante’s medical practitioners had said that his mother, Miss Humberstone, had a history of not providing adequate care for him in relation to his asthma. There was an allegation by Miss Humberstone that the paramedic who responded to Dante’s asthma attack was negligent because he dropped a clip from the nebuliser into Dante’s throat during resuscitation.

Miss Humberstone applied for legal aid funding to be represented at the coronial inquest. Funding was denied by the Commission. Miss Humberstone sought the Commission to recommend her application for exceptional funding to the Lord Chancellor under s 6(8)(b) of the Access to Justice Act 1999 (UK). Such a recommendation was a necessary pre-condition to the grant of such funding by the Lord Chancellor. The Commission refused to make the recommendation sought by Miss Humberstone on two bases:

that art 2 did not apply to the circumstances of the case at all, because there was no allegation of gross negligence by state agents; and
that if art 2 did apply, Miss Humberstone did not require legal representation at the coronial inquest for the requirement for an effective investigation to be met.

The Lord Chancellor’s Guidance stated relevantly that, before making a recommendation to the Lord Chancellor, the Commission should be satisfied that funding would be necessary to allow the coroner to conduct an effective investigation into the death as required by art 2. The Guidance also provided that the Commission must consider all the circumstances of the case, including such matters as the nature and seriousness of any allegations likely to be raised at the inquest, including allegations against the person who seeks funding for representation, and whether the family can participate effectively without being represented.

Decision

The Court allowed the judicial review and quashed the decision of the Commission not to recommend the application for public funding to the Lord Chancellor. The parties were given 21 days to lodge an agreed draft order to follow the judgment.

The Court found that art 2 applied in Dante’s case, and that there was an obligation to conduct an effective investigation into the death. The Court considered the relevant UK authorities and held that the state may have a duty to provide a mechanism for the investigation of a death even where there is no possibility that a state agent breached the primary duty imposed by art 2 (protection of life by the law). The state, it was held, may be ‘sufficiently implicated in a death to trigger the obligation of investigation’ absent a breach of the primary duty. This may occur, as was the case here, where the deceased was in the care of a state agent (an NHS hospital) at the time of death.

The Court then considered whether the obligation to carry out an effective investigation was breached by the Commission’s refusal. The Court asked ‘whether the Commission lawfully concluded that, in all the circumstances of the case, funded representation for Miss Humberstone was not necessary to enable the Coroner to carry out an effective investigation into Dante’s death.’ The Court held that the Commission had not reached a lawful conclusion.

The Court held that the Commission had not properly taken account of the nature and seriousness of the allegations. There were suggestions that Miss Humberstone may have caused or contributed to Dante’s death, and the Coroner himself had considered – and informed the Commission – that such suggestions were likely to be made at the inquest. The Commission had overlooked the possibility that the inquest would involve allegations that Miss Humberstone had caused or contributed to Dante’s death.

This conclusion also ‘fatally undermined’ the Commission’s conclusion that Miss Humberstone could participate effectively in the inquest without representation. Her inability to do so was compounded by her limited education, ability and experience, and the depression from which she suffered. The inquest was likely to be complex, a matter exemplified by the fact that every other party at the inquest would be legally represented (some at public expense).

Relevance to Victorian Charter

It is well established that the right to life imposes three different duties upon the state, namely:

a negative duty to refrain from taking life, save in exceptional circumstances;
a positive duty to properly and openly investigate deaths for which the state might bear some responsibility or in which the state may in some way be implicated; and
a duty to take positive steps to protect the lives of those within its jurisdiction: see, eg, Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74, [76].

This case clearly establishes that the duty to properly and openly investigate deaths may extend to enabling the effective participation of affected persons in those investigative processes. This has implications for the availability of legal aid funding in Victoria and participation in coronial proceedings.

The decision is available at www.bailii.org/ew/cases/EWHC/Admin/2010/760.html.

Claire Nicholson is a Law Graduate and Duncan Travis a Senior Associate with Allens Arthur Robinson

Imposition of Unreviewable Lifetime Reporting Requirements on Sexual Offenders a Disproportionate Intrusion on Private Life

F & Anor, R (on the application of) v Secretary of State for the Home Department [2010] UKSC 17 (21 April 2010)

This case concerned lifetime reporting requirements for sex offenders. The Supreme Court of the United Kingdom decided that while the requirements themselves were reasonable, imposing them without any possibility of review was not proportionate as it was impossible to rule out the possibility that some offenders would eventually be able to demonstrate they no longer posed a risk of reoffending. The Court upheld a declaration of incompatibility under the Human Rights Act 1998 (UK).

Facts

This decision was an appeal relating to the Sexual Offences Act 2003 (UK), according to which sexual offenders sentenced to 30 months’ prison or more are automatically required to keep the police notified of where they are living and of travel abroad, by attending in person at a police station. This is a lifetime reporting requirement. Further, there is no right to apply for review of the notification requirements.

The two appellants had been convicted of sexual offences and were each sentenced to at least 30 months’ imprisonment, making them automatically subject to the lifetime reporting requirements. One of the appellants was 11 years old at the time of his offence.

The claimants were not able to bring proceedings under the Human Rights Act 1998 (UK) because such claims were precluded by a section of that Act.

Instead, an appeal was brought on the basis of art 8 of the European Convention on Human Rights, which states that interference by a public authority with a person’s right to respect for his private and family life must be in accordance with the law and necessary in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.

Decision

Proportionality of the requirements

The Court observed that the reporting requirements would obviously interfere with the offender’s right to privacy. In particular, the Court considered that the necessity of going repeatedly to a police station to provide information about one’s address and movements would create a risk that that information would be overheard by a third party, or that third parties might become aware of the reason for the reporting. The previous version of the Act required only written notifications and there was no explanation for the legislative change.

However the Court also recognised the importance of the legislative objective behind the requirements (i.e. the prevention of reoffending). The automatic nature of the requirements was held to be a necessary and reasonable element of the scheme, and the indefinite duration of the requirements did not render the scheme disproportionate.

Rather, the debate in this appeal was about the necessity and utility of imposing the notification requirements for life without any possibility of review. The issue was that some people subjected to the lifetime notification requirement might at some point be able to demonstrate that they no longer pose a significant risk of committing further sexual offences, and in this case the requirements would be an unjustified interference with the offenders’ rights under art 8.

Possibility of carrying out a reliable risk assessment

The Court was therefore required to address the question of whether there are in fact offenders who would be able to clearly demonstrate that they present no risk of reoffending, or whether all sexual offenders by definition carry a material risk of reoffending.

On the question of whether reliable risk assessment can be carried out on offenders, there was some evidence about the proportion of sexual offenders who reoffend and the time period over which they reoffend. However, there was no evidence adduced about whether it was possible to identify which individuals posed more or less risk.

As a result of this factual uncertainty, the Court held that it was not proportionate to provide for no possibility of review of the lifelong reporting requirements. In the Court’s opinion, there would be circumstances where a tribunal could reliably conclude that the risk of an individual reoffending could be discounted to the extent that continued notification requirements would not be necessary.

In addition, the Court noted that numerous other jurisdictions have registration requirements for sexual offenders which make provision for review. The Court held that this does not suggest that any such review would be impracticable.

Conclusion

The Court upheld the declaration of incompatibility made by the Divisional Court at first instance.

The Court was careful to note that there was no implication that, had the claimants had been entitled to a review of their notification requirements, their claims would have succeeded. The Court at first instance went to some lengths to indicate that it recognised that issues of sexual reoffending were of great concern to the public and that it was not putting the interests of offenders ahead of those of victims. The Supreme Court appears to have taken a similar stance in highlighting the practical implications of its decision.

Relevance to the Victorian Charter

This case may be relevant to the interpretation of s 13(a) of the Victorian Charter, particularly in relation to privacy, and to the limitation of human rights by law under s 7.

The legislation relating to sex offenders in Victoria is more flexible than that in the UK. In Victoria, while there are automatic lifetime reporting requirements for people found guilty of certain serious sex offences (see Sex Offenders Registration Act 2004 (Vic) s 34(c)), the law provides for reduced reporting periods for persons who were children at the time they committed an offence (s 35) and for suspension of orders by the Supreme Court if a person has not reoffended within 15 years and poses no risk to the sexual safety of the community (ss 39 and 40).

The decision is available at www.bailii.org/uk/cases/UKSC/2010/17.html.

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

Post-Sentence Detention Incompatible with Prohibition against Arbitrary Detention

Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (12 April 2010)

Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007 (12 April 2010)

The UN Human Rights Committee has held that the post-sentence detention of two men convicted of sexual offences, Kenneth Tillman in New South Wales and Robert Fardon in Queensland, was incompatible with the prohibition against arbitrary detention under art 9(1) of the International Covenant on Civil and Political Rights.

The Committee also opined, without deciding the matter, that the post-sentence detention of Tillman and Fardon may contravene the prohibition against double punishment under art 14(7) and against retroactive punishment under art 15(1).

Facts

Tillman

Kenneth Tillman was convicted of a number of serious sexual offences on 6 March 1998. He was sentenced to ten years’ imprisonment. One week prior to his release in April 2007, the Attorney-General of NSW filed an application under the Crimes (Serious Sex Offenders) Act 2006 (NSW) requesting that Tillman be detained for a further five years. The Supreme Court of NSW granted an interim order in April 2007 and then, on 18 June 2007, a further order that Tillman be detained in prison for a further year.

Fardon

On 30 June 1989, Robert Fardon was sentenced to 14 years’ imprisonment for a number of serious sexual offences. His sentence expired on 30 June 2003.

On 6 June 2003, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) came into force and, on 17 June 2003, the Attorney-General of Queensland filed an application under that Act seeking that Fardon be detained indefinitely. Pursuant to a series of decisions by the Supreme Court of Queensland, Fardon was subject to a continuing detention order until 4 December 2006, after which he was released and made subject to a conditional supervision order.

Both Tillman and Fardon complained that their post-sentence detention was incompatible with:

the prohibition against double punishment under art 14(7) of the ICCPR; and
the prohibition against arbitrary detention under art 9(1) of the ICCPR.

Decision

Summary

In both cases, the Committee held that the facts disclosed a violation of art 9(1), in light of which they did not consider it necessary to consider the complaints separately under art 14(7).

In accordance with art 2(3) of the ICCPR, the Committee held that Australia is under an obligation to provide Tillman and Fardon with an effective remedy for this breach, including the termination of their detention.

Admissibility: Exhaustion of Domestic Remedies

The Optional Protocol to the ICCPR requires that an author first exhaust domestic remedies in order that a complaint is deemed admissible to the Committee. Rejecting Australia’s assertion that Tillman had not exhausted domestic remedies because he did not seek a writ of habeas corpus or seek leave to appeal to the High Court (unlike Fardon, who sought and was granted leave but was unsuccessful in the event), the Committee stated:

For the purposes of the Optional Protocol, an author is not required to exhaust domestic remedies if the jurisprudence of the highest domestic tribunal has decided the matter at issue, thereby eliminating any prospect of success of an appeal to the domestic courts.

Article 9(1): Prohibition of Arbitrary Detention

In both cases, the Committee concluded that the post-sentence detention of the authors was incompatible with art 9(1) for a number of reasons, including that:

The authors had already served their terms of imprisonment yet continued to be detained. The Committee stated that this ‘detention amounted, in substance, to a fresh term of imprisonment which…is not permissible in the absence of a conviction for which imprisonment is a sentence prescribed by law’.
Imprisonment is penal in character and ‘can only be imposed pursuant to a conviction for an offence in the same proceedings in which the offence is tried’. In the present cases, the Committee stated that the authors’ further terms of imprisonment were the result of court orders made 10 and 14 years, respectively, after the authors’ convictions and sentences ‘in respect of predicted future criminal conduct which had its basis in the very offence for which [they] had already served [their] sentences’. The Committee stated further that these new ‘sentences’ fell within the prohibition against retroactive punishment and subjection to a ‘heavier penalty than was applicable at the time when the criminal offence was committed’, contrary to art 15(1) of the ICCPR. They concluded that detention pursuant to proceedings which themselves contravene art 15(1) is ‘necessarily arbitrary’ within the meaning of art 9(1).
The process pursuant to which the court orders for continuing detention were made was designed to be ‘civil in character’ and did not, therefore, ‘meet the due process guarantees required under art 14…for a fair trial in which a penal sentence is imposed’. Again, detention pursuant to proceedings which themselves contravene art 14 is necessarily arbitrary within the meaning of art 9(1).

Limitations on Rights: The Requirement of ‘Minimal Impairment’

Finally, the Committee stated that in circumstances where a person is preventatively detained because they are ‘feared’ to be a ‘danger to the community…and for the purposes of rehabilitation’, the ‘State Party must demonstrate that rehabilitation could not have been achieved by means less intrusive than continued imprisonment’.

The requirement of any limitation being a minimal impairment is closely connected both with the state’s obligation to avoid arbitrariness under art 9(1) and the ‘continuing obligation under art 10(3)…to adopt meaningful measures for the reformation’ of prisoners.

Relevance to the Victorian Charter

This decision is particularly pertinent to the scope and application of s 21(2) (right to freedom from arbitrary detention), s 26 (right not to be tried or punished more than once) and s 27 (retrospective criminal laws) of the Victorian Charter.

The decision is also apposite to the human rights compatibility of Victoria’s Serious Sex Offenders (Detention and Supervision) Act 2009, which is substantively similar to the NSW and Queensland Acts which were the subject of the Committee’s consideration. This is particularly so given that the predecessor to the current Act, the Serious Sex Offenders Monitoring Act 2005 (Vic), was held to be incompatible with the Charter by Ross J of the County Court in Secretary to the Department of Justice v AB [2009] VCC 1132 (28 August 2009).

The Committee’s decisions are available at http://tb.ohchr.org/default.aspx.

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

Proof of Identity Requirements and Limitations on the Right to Vote

Henry v Canada (Attorney General), 2010 BCSC 610 (4 May 2010)

This case concerned the constitutional validity of voter identification rules, which require electors to provide proof of their identity and residence in order to vote in Canadian federal elections. The Supreme Court of British Columbia found that the relevant provisions of the Canada Elections Act (‘the Act’) were inconsistent with the right to vote guaranteed under s 3 of the Canadian Charter of Rights and Freedoms (‘the Canadian Charter’). However, the Court held that the Act constituted a reasonable limitation on this right, prescribed by law and demonstrably justifiable in a free and democratic society, pursuant to s 1 of the Canadian Charter.

Facts

Voter identification rules were introduced into the Act following a 2005 report by the Chief Electoral Officer of Canada (‘CEO’) on the 2004 general election, and a 2006 report by the House of Commons Standing Committee on Procedure and House Affairs. The Committee’s report identified the potential for electoral fraud and error as a key concern for the integrity of the electoral process. Implementing the Committee’s recommendations, the Canadian Government amended the Act to include a requirement that electors present forms of acceptable identification to establish their identity and residence, or swear an oath to be vouched for by another elector, before being permitted to vote. These provisions came into force in June 2007. At the time of judgment, they had governed the conduct of seven by-elections and one general election.

The plaintiffs were three Canadian citizens and registered electors who were directly affected by the legislative amendments. Two were advocates for homeless persons and drug users on the exercise of their right to vote, and one an elderly visually impaired person with an active interest in government and public policy. The plaintiffs argued that the voter identification requirements imposed an infringement on the right to vote. They sought:

a declaration that ss 143(2)-(7), 148.1(1), 161(1), (6) and (7) and 169(2) of the Act were contrary to section 3 of the Canadian Charter, could not be saved by s 1 of the Canadian Charter and were void and of no effect, due to s 52(1) of the Constitution Act 1982; and
an order that the CEO not apply the amended voter identification rules in elections for the Canadian Parliament.

The Attorney-General of Canada, as defendant in the proceedings, contended that the legislative amendments did not interfere with or restrict the right to vote, but rather safeguarded and enhanced this right, by improving the integrity and equality of the electoral system. The Attorney-General’s alternative submission was that the requirements were ‘reasonable limits’ on the s 3 Canadian Charter rights within the meaning of s 1 of the Canadian Charter.

Decision

Infringement of the plaintiffs’ rights

The Court described the right to vote in s 3 as a ‘core element’ of the Canadian Charter and ‘foundational to democracy’. It held that this provision, which cannot be overridden by legislation, ‘must be given the most liberal and generous interpretation consistent with its purpose’. However, the Court recognised that some limitations on electoral rights are ‘inherent’ in the language of s 3, such that these rights guarantee meaningful, but not unlimited, participation.

The focus of the Court’s attention was s 148.1(1) of the Act, which denies an elector permission to vote if they fail to prove their identity and residence. Significantly, disenfranchisement for failure to comply with a procedural requirement distinguished the present case from cases in which the very purpose of the provisions was to disenfranchise specific groups of citizens based on their identity. The Court observed that the s 3 voting rights possess both positive and negative characteristics, protecting citizens against legislation which removes the right to vote, and requiring governments to create mechanisms enabling the effective exercise of the right.

Section 148.1(1) was found to limit access to the right to vote to those who cannot satisfy the identification requirements. On this basis, the Court concluded that s 148.1(1) was on its face inconsistent with the s 3 Charter guarantee, as it interfered with ‘the capacity of each citizen to play a meaningful role in the electoral process’. In addition, the plaintiffs were able to establish that this provision in its effect infringed s 3 of the Canadian Charter. The Court stressed that ‘being denied a ballot is an irretrievable deprivation’, and constituted ‘more than a trivial interference’ with voting rights.

The voter identification requirements as reasonable limitations on the right to vote

Section 1 of the Canadian Charter guarantees rights and freedoms ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. The Attorney-General of Canada bore the onus to establish, on the balance of probabilities, that the impugned provisions of the Act constituted a reasonable limit on the right to vote protected by s 3 of the Charter.

The Court held that a degree of deference to Parliament was warranted, taking into account the difficulty of measuring the harm involved in voter fraud and error. The defendant’s asserted objectives for the impugned provisions were (a) to protect the integrity of the right to vote; and (b) to maintain public confidence in the integrity of the electoral system. The Court agreed that these were both ‘pressing and substantial’ objectives, and thus capable of justifying limitations on the right.

Whilst the evidence revealed no history of systemic electoral fraud in Canadian federal elections, the Court concluded that the legislation greatly reduced the potential for fraudulent or mistaken voting, and enhanced public confidence in the integrity of the electoral process. Conversely, the Court accepted the inference that the voter identification requirements had acted as a deterrent for a ‘small number’ of Canadians, particularly the economically disadvantaged, seniors, disabled and those in rural/remote areas. However, there was no clear evidence that any individual citizen had in fact been prevented from voting as a ‘sole result’ of the requirements, or that they had generated ‘declining faith in democracy’.

Balancing these effects, the Court held that the provisions were proportionate, with the legislation’s ‘salutary effects’ outweighing the ‘very modest’ actual or potential deleterious effects, which amounted to a ‘minor inconvenience for a minority of electors’.

Relevance to the Victorian Charter

In Victoria, there are currently no proof of identity or residence requirements for voting in local and state elections. Were such requirements to be introduced, the Henry decision may guide the Supreme Court in its interpretation of s 18(2)(a) of the Victorian Charter (‘Taking part in public life’), which provides that ‘Every eligible person has the right, and is to have the opportunity, without discrimination to vote and be elected at periodic State and municipal elections that guarantee the free expression of the will of the electors’.

The wording of section s 7(2) of the Victorian Charter, which addresses circumstances in which human rights may be limited, is almost identical to that of s 1 of the Canadian Charter. It provides for ‘such reasonable limits as can be demonstrably justified in a free and democratic society’. Thus, the Victorian Supreme Court may adopt the purposive approach taken by the Court in Henry if it were to examine the compatibility of legislative provisions affecting electoral rights with the right to vote protected under the Victorian Charter.

Further, in the recent case of R v Momcilovic [2010] VSCA 50 (17 March 2010), the Victorian Court of Appeal held that interpretation of legislation in accordance with the Victorian Charter human rights framework, as provided by ss 32(1) and 7(2), required that ‘all possible interpretations of the provisions in question’ be explored, and that an interpretation be taken which ‘least infringes Charter rights’. This approach sees Victorian law accord with the Canadian Henry decision, which found that Canadian statutory provisions are to be interpreted so as to maximise the realisation of Charter rights.

The decision is available at www.courts.gov.bc.ca/jdb-txt/SC/10/06/2010BCSC0610.htm.

Georgina Dimopoulos is a Law Graduate with Allens Arthur Robinson

Refusal to Recognise Change of Ethnic Identity is Discriminatory and Breaches Right to Respect for Private Life

Ciubotaru v Moldova [2010] ECHR 638 (27 April 2010)

In Ciubotaru v Moldova, the European Court of Human Rights held that, along with such aspects as name, gender, religion and sexual orientation, an individual’s ethnic identity constitutes an essential aspect of his or her private life and identity.

Considering art 8 of the European Convention on Human Rights, the Court held that the refusal by the State authority to record a change in ethnic identity, in circumstances where Mr Ciubotaru was able to provide objectively verifiable links to the relevant ethnic group, constituted a contravention of Moldova’s obligations to safeguard Mr Ciubotaru’s right to respect for his private life.

Facts

Mihai Ciubotaru is a Moldovan national who was born in 1952.

In 2002, Mr Ciubotaru applied to have his old Soviet identity card replaced with a Moldovan one. In making that application, Mr Ciubotaru initially stated his ethnicity as Romanian. However, he was advised by the relevant State authority that his application would not be accepted unless he stated his ethnicity as Moldovan. Mr Ciubotaru complied with this advice, amending the ethnic identity stated in the application from ‘Romanian’ to ‘Moldovan’.

Once Mr Ciubotaru received his new Moldovan identity card, he subsequently requested the issuing authority to amend the ethnic identity specified on the card from ‘Moldovan’ to ‘Romanian’ as he did not consider himself an ethnic Moldovan (an ethnic group which he believed to be an artificial creation of the Stalinist regime). His request was refused on the grounds that the State authority’s procedures would not permit such a change unless Mr Ciubotaru’s parents were recorded as ethnic Romanian in their birth and marriage certificates.

Mr Ciubotaru’s parents, Dumitru Ciubotaru and Sofia Caraiman, were born in 1927 and 1928 respectively in Balti, a province of Bessarabia, Romania. Their Romanian civil status documents did not contain any information concerning their ethnic identity. In their marriage certificate issued by the Soviet authorities in 1949, the entry for ethnicity was left blank. However the applicant’s birth certificate issued by the Soviet authorities in 1952 recorded his parents as ethnic Moldovans. On Sofia Caraiman’s birth certificate issued by the Soviet authorities in 1965 the ethnicity was also left blank. Later, Mr Ciubotaru’s parents were recorded as ethnic Moldovans on their Soviet identity cards issued in 1976 and 1979.

Having complained unsuccessfully numerous times to the Prime Minister, the President and various officials, Mr Ciubotaru initiated proceedings in the Rascani District Court against the relevant State administrative authority, however his claim was dismissed by both the District Court and the Chisinau Court of Appeal on the same basis as the State authority had rejected Mr Ciubotaru’s request; namely, that because his parents had not been recorded as ethnic Romanians, it was procedurally impossible for the State authority to record Mr Ciubotaru as an ethnic Romanian in his identity papers.

The Supreme Court of Justice subsequently dismissed Mr Ciubotaru’s appeal on points of law.

Mr Ciubotaru lodged an application with the European Court of Human Rights in 2004, alleging a breach by the Republic of Moldova of his right to respect for private life under art 8, and of his right to a fair hearing of his claim under art 6, of the European Convention on Human Rights.

Decision

Before the European Court of Human Rights, Mr Ciubotaru (‘the applicant’) argued that the relevant Moldovan law and practice of recording ethnic identity had created insurmountable barriers for people who wished to have a different ethnic identity registered in respect of themselves as compared to the ethnic identities recorded in respect of their parents by past Soviet authorities. He alleged that in refusing to register his Romanian ethnic identity, the authorities had humiliated him by forcing upon him an ethnic identity which was contrary to his philosophy and with which he did not identify. The applicant argued that the State’s actions were tantamount to xenophobia, as they were not in accordance with democratic values and did not promote the value of pluralism, inherent in a democratic society.

The applicant asserted that the forced imposition of Moldovan ethnic identity on him constituted an interference with his right to identity and consequently with his right to respect for his private life. The applicant also submitted that the authorities had a positive obligation to allow him to freely choose his association with any cultural group, including Romanian, without being required to provide evidence. Only one judge accepted the latter submission. The majority of the Court did not dispute the right of a State party to require objective evidence of a claimed ethnicity to be provided in support of an application to amend ethnicity in identity documentation.

The majority of the Court accepted the principle that it should be open to State authorities to reject a request to officially record a claimed ethnicity in circumstances where that claim is based on purely subjective and unsubstantiated grounds. However, in this case, the applicant appeared to have been confronted with a legal and procedural requirement which made it impossible for him to evidence his claim.

According to Moldovan law, the applicant could only have changed his ethnic identity if he was able to show that at least one of his parents had been recorded in official records as being of Romanian ethnicity. During Soviet times, almost all of the population of Moldova including members of the Romanian ethnic group had been deliberately and systematically registered as being of Moldovan ethnicity, with very few exceptions. The Court found that to require the applicant to show evidence of officially recorded Romanian parental ethnicity was to impose a disproportionate evidentiary burden.

The Court also observed that the applicant’s claim was based on more than just his subjective perception of his own ethnicity. In this case, the applicant was able to provide objectively verifiable links to the Romanian ethnic group including language, name and empathy, however Moldovan law did not recognize these characteristics as acceptable evidence of ethnicity. For this reason, procedures did not allow for the applicant’s claim to be examined by the State authority in light of the objectively verifiable evidence available in support of that claim.

The Court concluded that the existing procedure by which the applicant could have his recorded ethnicity changed did not comply with Moldova’s obligations under the Convention to safeguard his right to respect for his private life. The Court therefore declared that there had been a violation of art 8 of the Convention by Moldova. Given its finding in respect of art 8, the Court did not regard separate examination of the complaint under art 6 as necessary.

Relevance to the Victorian Charter

The requirement for public authorities in Victoria to act consistently with the right to respect for a person’s private life is contained in art 13 of the Victorian Charter. However, the exact meaning and scope of that right has never been easy to pinpoint.

The Court in Ciubotaru acknowledged that the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. The Court has previously held that it covers various aspects of the physical and psychological integrity of a person and that gender identification, name, religion, sexual orientation and sexual life all pertain to an individual’s identity falling within the personal sphere protected by art 8, but it is important to remember that the Convention is a ‘living instrument’ – that is, the nature of Convention rights and the extent to which they should be protected will, to a large extent, rest upon society’s values at the time.

The decision in Ciubotaru should inform the Victorian courts’ interpretation of s13 of the Charter, highlighting the fact that the list of characteristics constituting an individual’s ‘private life’ is far from closed. Similarly, the Victorian courts must continuously reassess the scope of rights protected under the Charter in light of material changes in attitudes towards, and scientific knowledge and insight into, human characteristics and interactions.

The decision is available at www.bailii.org/eu/cases/ECHR/2010/638.html.

Andrea Wookey is an Executive Counsel with Freehills, currently seconded to PILCH

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HRLRC Policy Work

Setting the Agenda: Policy Brief on Promoting Equality and Addressing Discrimination in Australia (24 May 2010)

The Human Rights Law Resource Centre is preparing a series of policy briefs designed to set the agenda for Australia in certain areas of human rights. Each brief identifies a human rights problem or opportunity, discusses the imperative for action, adduces and analyses relevant evidence, and makes concrete recommendations for Australia to advance the agenda at the international and national levels.

The policy brief on ‘Promoting Equality and Addressing Discrimination in Australia’ identifies that the law can and should play a central normative and educational role in advancing meaningful equality for all Australians. This requires a shift away from an outdated and ineffective complaints-based, remedial model of anti-discrimination laws. Instead, Australian law should promote a rights-based model of substantive equality which emphasises equal outcomes and addresses structural causes of inequality. This would contribute to a more fair, cohesive and productive society.

The brief makes 7 concrete recommendations for action, including that:

The Government should release an exposure draft for a single, comprehensive Equality Act which promotes and enshrines a legal right to substantive equality.
The federal Equality Act should include a provision mandating that, after four years of operation, an inquiry be held into a constitutional amendment aimed at enshrining the right to equality.
The Federal Government should require public bodies to consider equality in policy development, spending and service delivery.
The Federal Government, its agencies and public authorities should use public procurement to promote equality and assess suppliers on the progress that they are making in reducing inequality.
The Federal Government should show political leadership and support for the equality agenda by appointing a Minister for Human Rights and Equality who should hold a seat in cabinet.
All public bodies should produce and publish annual equality reports.
The Australian Human Rights Commission Act should be amended to provide that all Commissioners are to submit a report, to be tabled in Parliament, regarding the status of human rights in Australia within their areas of responsibility and containing concrete recommendations to enhance human rights in these areas. Further, the Commission should be adequately resourced to discharge this function.

The brief is available at www.hrlrc.org.au/content/topics/asia-pacific/setting-the-human-rights-agenda/.

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

Refugee Rights: Centre Publishes Opinion on Unlawfulness of Asylum-Seeker Processing Freeze

The Centre has recently commissioned and published a Joint Opinion from three leading barristers (Debbie Mortimer SC, Chris Horan and Kathleen Foley) in relation to the lawfulness of the suspension of the processing of asylum claims made by Sri Lankan and Afghan nationals.

The Joint Opinion concludes that the policy is incompatible with Australia’s obligations under international law, including the Refugee Convention, the International Convention on the Elimination of all forms of Racial Discrimination and the International Covenant on Civil and Political Rights. It also concludes that the policy – and persons acting under the policy – is susceptible to challenge in the Federal Court of Australia and the High Court of Australia under the Migration Act 1958 and the Racial Discrimination Act 1975.

The Joint Opinion is available at www.hrlrc.org.au/content/topics/refugees-and-asylum-seekers/refugee-rights-processing-suspension-breaches-international-and-domestic-human-rights-law-23-may-2010/.

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

Human Rights and Counter-Terrorism: Submission to Senate Committee on National Security Legislation Reforms

The Australian Government has introduced proposed legislation to amend aspects of the counter-terror legal regime. On 30 April 2010, the HRLRC and Amnesty International made a joint submission to the Senate Standing Committee on Legal and Constitutional Affairs’ inquiry into the two bills, namely the National Security Legislation Amendment Bill 2010 (the NSL Bill) and the Parliamentary Joint Committee on Law Enforcement Bill 2010 (the PJC Bill).

The broad approach of HRLRC and Amnesty is that governments have a duty to protect the rights, lives and safety of people within their territory and perpetrators of violent or terrorist acts should be brought to justice. However, the measures put in place to bolster national security, protect lives and prevent terrorist attacks should not unduly infringe on people’s human rights. Too often, debate on counter-terrorism laws and measures presupposes that national security and human rights are inherently in tension or even mutually exclusive. Fundamentally, however, human rights, human security and national security are closely associated and intertwined.

Amnesty and the HRLRC submit that many of Australia’s counter-terror laws as amended by the Bills violate fundamental human rights. For example:

Some offences of urging group violence on the basis of race, religion or national origin in the Criminal Code may infringe the right to freedom of speech, whilst at the same time not adequately protecting against racial and religious vilification.
Some terror-related offences are defined so broadly that the law effectively criminalises thought and speech, such as the ‘praising’ of a terrorist act. These laws operate in a manner that constitutes an impermissible violation of the right to freedom of expression.
Under changes proposed by the NSL Bill, persons suspected of terrorism offences can be detained for up to 8 days without charge. While this is an improvement on the current laws, which contain no cap on time spent in pre-charge detention, the detention of a person without charge for 8 days is very likely to breach the prohibition against arbitrary detention.
New search powers allow the police broad discretion to enter private homes without a warrant if they suspect on reasonable grounds that a ‘thing’ is on the premises that is relevant to a terrorist act (even one that has not occurred) and it is necessary to prevent the thing from being used in connection with a terrorist act. The lack of judicial oversight of police action, and the broad terms of the legislative power to enter premises, significantly limit the right to privacy.

Finally, the Bills do not address some of the most controversial elements of Australia’s counter-terror laws. Amnesty and the HRLRC call on the Australian Government to immediately take steps to review the human rights implications of the control order and preventative detention order schemes; the excessively broad powers of ASIO to detain and question people, including non-suspects; the offences of associating, supporting and training with a terrorist organisation; and the overly-broad definition of ‘terrorist act’ in the Criminal Code.

The submission is available at www.hrlrc.org.au/content/topics/counter-terrorism/human-rights-and-counter-terrorism-submission-to-senate-committee-on-national-security-legislation-reforms-3-may-2010/.

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

Major Australian Parliament Report on Human Rights in the Asia-Pacific: Challenges and Opportunities

As discussed above, on 3 May 2010, the Australian Parliament’s Human Rights Sub-Committee published a report on Australia’s role in promoting and protecting human rights in the Asia-Pacific region, entitled Human Rights in the Asia-Pacific: Challenges and Opportunities.

The Committee referred to the HRLRC’s submission extensively, citing it over 85 times through the report. Consistent with the HRLRC’s submission, the Committee found that, while Australia has a ‘significant role to play’ in promoting and protecting human rights in the region, Australia must also be ‘sensitive and cooperative in its approach and action on human rights matters’.

Among other HRLRC proposals endorsed in the report, the Committee recommended that:

the Australian Government should be ‘conscious of its human rights obligations in all of its regional relationships’, including in the areas of aid, trade and investment;
AusAID should ‘adopt a human rights-based approach to guide the planning and implementation of development aid projects’;
Australia should adopt a ‘targeted approach’ to ‘improve the level of ratification of core human rights treaties in the Asia-Pacific, and to assist countries in meeting their obligations once they are parties to these important treaties’, including through education and the provision of financial and technical support; and
the Australian Government should support the ‘vital work’ being done by NGOs and civil society in the promotion and protection of human rights in the region, including by establishing a scholarship fund to enable human rights defenders to attend human rights courses and programs in Australia.

The HRLRC’s submission is at www.hrlrc.org.au/content/topics/asia-pacific/australias-role-promoting-human-rights-asia-pacific/.

The Committee’s report is at www.aph.gov.au/house/committee/jfadt/asia_pacific_hr/report.htm.

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

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HRLRC Casework

Centre Assists Female Prisoner in Application for Access to Reproductive Health Care

The Centre is acting for Kimberley Castles, a 45 year old woman who is currently held as a low security prisoner, in her application to access reproductive health care. On 4 May 2010, the Supreme Court of Victoria rejected Ms Castles’ application for an injunction restraining the Secretary of the Department of Justice from refusing to grant the permits and approvals necessary to access IVF treatment, contrary to the Victorian Charter of Rights. The Court did, however, order that the matter be expedited and brought on for speedy trial, within a month, given the urgency of the issues. The matter has been listed for three days from 1 June 2010.

The Centre is being assisted in this matter by Blake Dawson, Ron Merkel QC, Debbie Mortimer SC and Michael Borsky of Counsel.

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

Right to Health: Centre Intervenes in Coronial Inquest into Ectopic Pregnancy Death

The Centre recently obtained leave and appeared as an interested party at the coronial inquest into the death of Veronica Campbell. Mrs Campbell died of complications following a ruptured ectopic pregnancy, a condition no longer considered life-threatening in Australia. The inquest took place at the Coroners’ Court in Shepparton from 12-16 April 2010.

At about 10pm on 30 December 2008, Mrs Campbell presented at Cobram District Hospital with abdominal pain, and was diagnosed with a possible ectopic pregnancy. That hospital did not have any surgery facilities, so the attending doctor requested an ‘urgent’ ambulance transfer to Goulburn Valley Health in Shepparton, approximately 60 kilometres away, which was equipped to perform the necessary surgery. However, a series of delays ensued and Mrs Campbell arrived for surgery some four hours after that ambulance request was made. By that stage, Mrs Campbell had gone into cardiac arrest and could not be revived.

A significant focus of the inquest was on the systems and procedures in place at Ambulance Victoria for responding to emergency calls, the deficiencies of which were exposed by Mrs Campbell’s death. The evidence highlighted the real disparity between the ambulance services afforded to metropolitan Melbourne and those afforded to rural Victoria, as well as the failure to account for matters affecting rural areas, notably limited operating facilities and blood supplies, greater distances and poorer roads.

Mrs Campbell’s death prompted Ambulance Victoria to make a number of changes aimed at improving ambulance responses. The Coroner will no doubt evaluate those measures and make recommendations on any further steps to be taken. To assist with this process, the HRLRC will shortly be filing written submissions on the obligations imposed by the Charter of Rights upon Ambulance Victoria and other public authorities involved with her treatment. The HRLRC will urge the Coroner to make her recommendations in light of the rights enshrined in the Charter, particularly the right to life.

Rachel Lawson is a lawyer with Mallesons Stephen Jaques and is acting for the HRLRC in this matter

Indigenous Rights: Complaint against Northern Territory Government by Remote Aboriginal Community

The Human Rights Law Resource Centre, together with Lander & Rogers, is acting for members of a remote Indigenous community in a complaint of race discrimination against the Northern Territory.

The complaint, brought by students of Areyonga School in the Australian Human Rights Commission, alleges that the Northern Territory Department of Education and Training’s policy on requiring ‘compulsory teaching in English for the first four hours of each school day’ is racially discriminatory.

The policy called into question Areyonga’s Bilingual Education Program which had been operating since 1973. This program had allowed junior students to acquire literacy and numeracy skills in their local language, Pitjantjatjara, before transitioning these skills to English. However, since the policy’s introduction, students as young as five have been receiving the majority of their education in a language that they do not understand – English. This approach is at odds with expert advice that the most effective way for students in very remote Indigenous communities to learn English is through a Bilingual curriculum.

Following conciliation on 13 May, the parties agreed to continue discussions with a view to resolving the complaint without the necessity of court proceedings.

Melanie Schleiger is a lawyer with Lander & Rogers and a Board member of the Human Rights Law Resource Centre

Centre Secures Access to Health Care for Psychiatric Patient

A patient at a secure mental health hospital was seeking access to specialised medical treatment in relation to chronic, inflammatory arthritis. Advocates for the detainee, including Victoria Legal Aid and the HRLRC, considered that a lack of adequate medical services could raise a human rights issue with the Victorian Charter. The advocates raised, amongst others, Charter arguments with hospital management. Ultimately, the Mental Health Branch approved special funding for the requested treatment.

Audrey Yeap is on secondment to the Centre from Mallesons Stephen Jaques

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Seminars and Events

‘Human Rights at the Cross-Roads’ – Speech to 2010 Human Rights Dinner

The 2010 Human Rights Dinner, presented jointly by the Human Rights Law Resource Centre and the Public Interest Law Clearing House, was held on 14 May 2010 at the Melbourne Convention and Exhibition Centre.

The Dinner was addressed by Louise Arbour (President and CEO, International Crisis Group and former United Nations High Commissioner for Human Rights) and the Hon Rob Hulls MP (Deputy Premier and Attorney-General of Victoria) (available at www.hrlrc.org.au/files/Rob-Hulls-Speech-to-2010-Human-Rights-Dinner.doc).

The Executive Director of the Human Rights Law Resource Centre, Phil Lynch, also delivered a speech entitled ‘Human Rights at the Cross-Roads’ (available at www.hrlrc.org.au/files/Phil-Lynch-Speech-to-2010-Human-Rights-Dinner.doc).

18th Annual ANZSIL Conference: International Law in the 2nd Decade of the 21st Century

24 to 26 June 2010, ANU, Canberra

The 18th Annual ANZSIL is jointly presented by the Centre for International and Public Law, ANU College of Law and the Australian and New Zealand Society of International Law.

Date: Thursday, 24 June – Saturday, 26 June 2010 (finishing at 1.15pm)

Venue: University House, Australian National University, Canberra

Guest speakers include:

Dame Silvia Cartwright, Judge of the Trial Chamber, Extraordinary Chambers in the Courts of Cambodia for the prosecution of crimes committed during the period of democratic Kampuchea
The Hon Robert McClelland MP, Commonwealth Attorney-General
Dr Sanjay Chaturvedi, Coordinator, Centre for the Study of Geopolitics, Department of Political Science and Honorary Director, Centre for the Study of Mid-west and Central Asia, at Panjab University, Chandigarh
Professor Don McRae, Hyman Soloway Chair in Buisiness and Trade Law, University of Ottawa, and Member International Law Commission.

For further information, see http://law.anu.edu.au/anzsil/conferences/2010/registration.htm.

Educating for Human Rights, Peace and Inter-Cultural Dialogue

4-6 November 2010, UWS, Sydney

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

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

Public Interest Law Conference: Opportunities and Obstacles – Call for Papers

27-28 September 2010, Melbourne

The Civil Justice Research Group, in collaboration with the Public Interest Law Clearing House, the Federation of Community Legal Centres (Vic), the Environment Defenders Office (Vic) and the Human Rights Law Resource Centre, is hosting this conference, which will combine papers and discussions on the theory and practice of public interest law.

Papers are invited from researchers, practitioners, activists, students and other people working or interested in public interest law. The conference aims to promote dialogue between groups with a common interest and trigger discussion on public interest law, cases and issues. The conference will explore the opportunities and obstacles in the practice and reform of public interest law in Australia and internationally.

We are particularly interested in papers that consider these issues in the context of: human rights, Indigenous rights, children’s rights, animal rights, the environment, public interest NGOs, litigation costs, standing, public interest law jurisprudence, refugee law, SLAPP suits, freedom of speech, class actions, international public interest law and consumer law.

We invite the submission of a 300 word abstract and a 100 word biography no later than 1 June.

Abstracts should be sent to vesnas@unimelb.edu.au with PIL Conference Proposal in the subject line.

Questions regarding the conference should be directed to the Convenor, Gary Cazalet, Civil Justice Research Group, Melbourne Law School, at g.cazalet@unimelb.edu.au.

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Human Rights Resources

HRLRC in the News

The Centre has published the following opinion pieces since the last Bulletin:

Philip Lynch, ‘Human Rights in the Asia-Pacific’, ABC Online, 11 May 2010

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

‘Tackling Terrorism’, Business Spectator, 25 May 2010
Michael Gordon, ‘Asylum-Seeker Clamp Breaches Treaties: Lawyers’, The Age (Melbourne), 22 May 2010
Katie Bice, ‘Kimberley Castles Wins Speedy Trial for IVF Treatment Bid’, Herald Sun (Melbourne), 4 May 2010
Peta Carlyon, ‘Prisoner’s Legal Bid for IVF Treatment’, ABC Online, 4 May 2010
Andrea Petrie, ‘Trial to Decide Prisoner’s Right to IVF Treatment’, The Age (Melbourne), 4 May 2010
Padraic Murphy, ‘Jailbird Pleads for IVF Chance’, Herald Sun (Melbourne), 1 May 2010
Michael Pelly, ‘Rights Push Finally Put Out of Its Misery’, The Australian (Sydney), 23 April 2010
‘National Human Rights Bill Scrapped’, Lawyers Weekly (Sydney), 23 April 2010
Chris Merritt, ‘Charter’s Champion Forced to Hold His Tongue’, The Australian (Sydney), 23 April 2010

Australian Human Rights Grants Scheme – Call for Expressions of Interest

The Australian Government’s 2010-11 Human Rights Grants Scheme (HRGS) is now open to receive Expressions of Interest for funding to conduct human rights activities in developing countries.

The Scheme supports non-government organisations and human rights institutions to conduct human rights projects with direct and tangible benefits for at-risk populations. Through the Scheme, Australia helps to build civil society capacity in developing countries to protect and promote human rights at the grassroots level.

Human rights-focused organisations based or working in all ODA-eligible countries in Asia, the Pacific, Middle East, Africa, Latin America and the Caribbean are invited to apply for funding under the Scheme. Grants range from between $20,000 and $100,000 for one year projects and up to $150,000 for two year projects.

Expression of Interest forms must be mailed or delivered to the relevant Australian diplomatic post and received by 15 June 2010.

For further information, see http://www.ausaid.gov.au/business/other_opps/humanrights_scheme.cfm.

ISHR Launches New Periodic Publication on Key International and Regional Human Rights Developments

ISHR has launched a new publication, the Human Rights Monitor Quarterly. The Quarterly will present a composite picture of key developments in the international and regional human rights systems. The Quarterly will also highlight events, meetings, and opportunities for NGO/NHRI engagement in the upcoming quarter and beyond. It will be issued three times a year in 2010 (April, July, and October).

The Quarterly aims to inform and support human rights defenders in their engagement with the international and regional human rights systems by providing relevant and timely information on key developments and opportunities. The new publication will also contain articles on specific and topical issues or developments relevant to the work of human rights defenders.

To access and subscribe to Human Rights Monitor Quarterly, see www.ishr.ch.

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Human Rights Jobs

Opportunities with Australian Human Rights Commission and Victorian Equal Opportunity and Human Rights Commission

There are a number of current employment opportunities with the Australian Human Rights Commission (see www.humanrights.gov.au/about/jobs/index.html) and the Victorian Equal Opportunity and Human Rights Commission (see www.humanrightscommission.vic.gov.au/about%20us/employment/).

Activism Coordinator and Casework Coordinator with Amnesty International Australia

Amnesty International Australia has new and exciting opportunities for an Activism Coordinator (full-time) and a Casework Coordinator (3 days per week).

For further information and to apply, see www.amnesty.org.au/jobs/.

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Foreign Correspondent

Developments from the UN and in International Human Rights Law and Practice

Governments Elect New Members of the Human Rights Council

One of the most controversial issues in the international human rights system this month has been the election of new members to the Human Rights Council. On 13 May the General Assembly elected 14 governments to serve as members of the Human Rights Council for three-year terms commencing 18 June. NGOs were widely critical of the fact that all of the governments ran unopposed, as regional groups nominated the exact number required to fill the Council’s vacancies rather than put up a competitive slate. The countries elected as members were: Angola, Libya, Mauritania, and Uganda from the Africa Group; Maldives, Malaysia, Qatar, and Thailand from the Asia Group; Moldova and Poland from the Eastern European Group; Ecuador and Guatemala from the Latin America and Caribbean Group; and Spain and Switzerland from the Western European and Others Group. The Eastern European Group began the year with a competitive election, but Croatia withdrew its candidacy in February. The Asia Group also had a competitive election under way until Iran withdrew its candidacy in April in the face of mounting global opposition based on its record of serious human rights violations. NGOs were disappointed that their calls for governments to enhance the level of competition between those seeking membership were not heeded, as this would enhance the strength and legitimacy of the system. They had been encouraging governments to live up to the expectation that they make solid commitments to improving human rights in their own countries as part of the process of seeking membership of the Human Rights Council, as well as enhancing their support to the international human rights system, for example through issuing open invitations to the UN Special Procedures. It is widely felt that many governments continue to fall short of expectations in this regard.

World Health Assembly Convenes and new World Health Figures Released

During May, lots of health professionals converge on Geneva, as the World Health Assembly (WHA) is in session. At the WHA, Ministers of Health and their staff from most nations around the world assemble to pass resolutions on global health issues. Two of the most notable outcomes, from a human rights perspective, were a UK-initiated resolution on the need to address pneumonia (the world’s biggest child killer), and the adoption of a Global Code of Practice on International Health Personnel, which will govern the problem of health worker migration.

To coincide with the WHA, this month the World Health Organization released its annual Global Health Statistics which provides a global snapshot of how the WHO’s 193 member countries are progressing on the health related Millennium Development Goals (MDGs). The figures demonstrated some encouraging improvements in global health, including a drop in HIV infections and an increase in the percentage of the world’s population with access to safe water. On the down side, the report shows that these improvements are not enjoyed evenly across regions. For example, only nine countries in Africa are on track to meet the MDG target for reducing malaria.

Those involved in promoting the right to health might be interested in a useful article in the most recent issue of The Lancet, entitled ‘Making rights more relevant for health professionals’.

Criminalization of Same Sex Conduct

17 May was the International Day Against Homophobia and Transphobia. In some parts of the world, there was reason to celebrate this important day; for example the President of Portugal signed legislation legalizing same-sex marriages in that country. However, it was not a celebration everywhere. Many human rights advocates around the world were shocked and saddened by the news from Malawi that a gay couple has been prosecuted and sentenced to 14 years’ imprisonment with hard labour. The High Commissioner for Human Rights issued a strong statement on 21 May soon after the news was announced, calling for the conviction to be repealed and for the penal codes criminalizing homosexuality to be reformed. She stated: ‘I am shocked and dismayed by the sentence and reports of the treatment of Steven Monjeza and Tiwonge Chimbalanga while in detention. The law which enabled the conviction dates back to the colonial era and has lain dormant for a number of years – rightly so, because it is discriminatory and has the effect of criminalizing and stigmatizing people based on perceptions of their identity. If this was replicated worldwide, we would be talking about the widespread criminalization of millions of people in consensual relationships and the rampant violation of privacy.’

On the same topic, and to address what sadly seems to be a growing trend in the application of out-dated sodomy and other such laws, particularly in Africa, the International Commission of Jurists published a paper in May entitled ‘International Human Rights Law and the Criminalization of Same-Sex Sexual Conduct’, an excellent overview of the international legal framework that seeks to identify and explain the legal sources of the prohibition on the criminalization of same-sex sexual conduct.

Kampala Review of Rome Statute for International Criminal Court

From 31 May to 11 June, the first Review Conference on the Rome Statute on the International Criminal Court will be held in Kampala, Uganda. This special meeting of states parties to the ICC will consider amendments to the Rome Statute and take stock of its implementation and impact. In particular, the following proposals for amendments to the Rome Statute will be discussed: the revision of art 124 (which is a transitional provision allowing States to choose not to have their nationals subject to the Court’s jurisdiction over war crimes for a seven year period after ratification); the crime of aggression; and the inclusion of the use of certain weapons as war crimes in the context of an armed conflict not of an international character.

Amongst the most controversial is the crime of aggression. This month, Human Rights Watch issued a new report called Making Kampala Count, taking a strong position against inclusion of the crime of aggression in the ICC Statute. HRW argues against the crime of aggression on the basis that it could diminish the court’s role as impartial judicial arbiter, linking the court and the prosecutors to highly politicized disputes. The report also offers some recommendations for the ‘stocktaking’ part of the conference. The report is available at www.hrw.org/en/reports/2010/05/10/making-kampala-count-0.

The Open Society Justice Initiative has also coordinated a letter released this month, authored by a group of over 40 international NGOs, including many of the African NGOs who have worked on cases before the Court, to the Foreign Ministers of the Court’s members, arguing against the inclusion of the crime of aggression in the Rome statute. The letter claims that this would risk politicizing and overburdening the Court and undermine the integrity of the Rome Statute. The Kampala Review Conference is perhaps the most important meeting on the Rome Statute and the ICC since the Rome Conference when the Statute was adopted.

Memorial Debate for Australian Human Rights Lawyer

On 17 May, many members of the international human rights community met at the Geneva Academy of International Humanitarian Law and Human Rights to celebrate the life of Nicholas Howen, who died earlier this year of cancer at age 49. Nick was an Australian human rights lawyer (originally from Sydney and a graduate of UNSW) who most recently (from early 2004 until he resigned due to illness in December 2009) was the Secretary General of the International Commission of Jurists (ICJ). Sir Nigel Rodley, writing an obituary in the Guardian, described Nick as an internationally respected human rights lawyer, campaigner and diplomat. One of Nick’s earliest human rights achievements was to co-found the Tibet Information Network. He worked as a legal officer and later director of the legal office at the Amnesty International secretariat in London, and later directed the human rights team for the UN mission to Angola. He was appointed by Mary Robinson (when she was High Commissioner) to be her representative for the Asia-Pacific Region, based in Bangkok. The memorial debate, chaired by Mary Robinson, gathered together many of the leaders in human rights advocacy, to discuss and debate three key topics which had occupied much of Nick’s professional agenda: business and human rights; counter-terrorism; and field presences particularly in the Asia-Pacific. His family have set up a memorial fund in his honour, to provide scholarships for young people from developing countries to undertake internships at the ICJ: see www.nicholashowen.org.

Claire Mahon is an Australian international human rights lawyer based in Geneva, Switzerland, where she works as a consultant for NGOs and the UN. She is the Coordinator of the Project on Economic, Social and Cultural Rights at the Geneva Academy of International Humanitarian Law and Human Rights, Special Advisor to Mary Robinson, and an Adjunct Clinical Professor of Law at the University of Michigan Law School.

9th Session of the UN Permanent Forum on Indigenous Issues

The ninth session of the UN Permanent Forum on Indigenous Issues (UNPFII) was held in New York from 19-30 April 2010. The UNPFII was established in 2000 as an advisory body to the UN Economic and Social Council, with a mandate to discuss Indigenous issues related to economic and social development, culture, the environment, education, health and human rights.

The special theme for the ninth session was Indigenous peoples: development with culture and identity, which focused in particular on arts 3 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples.

The program of work for the session included:

discussion on the special theme of development with culture and identity;
implementation of the Declaration on the Rights of Indigenous Peoples;
an interactive dialogue with the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people and other special rapporteurs; and
dialogue with United Nations agencies.

The session was attended by a number of representative of Indigenous organisations from Australia, who made a number of interventions at the session, including:

a statement by Les Malezer on behalf of the Indigenous Peoples Organisations of Australia: see www.docip.org/gsdl/collect/cendocdo/index/assoc/HASH6e46/545160e9.dir/PF10robert040.pdf;
a joint intervention by Australian organisations in relation to the recent country visit by the Special Rapporteur: see www.docip.org/gsdl/collect/cendocdo/index/assoc/HASH7398/1c51d7bc.dir/PF10tammy0xx.pdf.

Further documents from the ninth session, including the program of work, statements made at the Forum and press releases, are available at www.un.org/esa/socdev/unpfii/en/session_ninth.html.

Ben Schokman is Director of International Human Rights Advocacy with the Human Rights Law Resource Centre and is currently working from the offices of ISHR in Geneva

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If I Were Attorney-General…

Investigating and Prosecuting War Crimes and Crimes against Humanity

If I were Commonwealth Attorney-General, I would make it one of my highest policy priorities to rectify the shameful indifference of successive Australian Governments to the presence of alleged war criminals in our nation. Allegations of responsibility for atrocities perpetrated overseas by individuals now enjoying life in Australia with no apparent prospect of investigation and prosecution (in the absence of an extradition request from another country) are rife in many ethnic communities fleeing societies wracked by conflict and violence. Even though some of these allegations may well be vexatious, I am convinced that many are not. Dragan Vasiljkovic’s failed defamation action against News Ltd not only vindicates my personal view but also illustrates the severity of the persistent allegations. I could not, in good conscience, hold the position of First Law Officer of the Commonwealth and perpetuate the indifference that apparently represents bi-partisan political orthodoxy.

My first initiative in pursuit of the policy objective would be legislative reform to fill the gaps in our existing legislation. The Howard Government’s implementing legislation for the International Criminal Court (International Criminal Court (Consequential Amendments) Act 2002) was both comprehensive and unprecedented in its scope. Any alleged war crimes, crimes against humanity or acts of genocide committed anywhere in the world after 1 July 2002 (the commencement date of the legislation) can now be prosecuted in Australian courts.

Unfortunately the temporal limitation of the ICC legislation is problematic. The only war crimes perpetrated before 1 July 2002 that can be prosecuted in Australian courts are war crimes committed in Europe between 1939 and 1945 (War Crimes Act 1945 as amended in 1989) and grave breaches of the four Geneva Conventions of 1949 and of Additional Protocol I of 1977 (Geneva Conventions Act 1957 as amended in 1991). No acts of genocide or crimes against humanity (with some limited exceptions for acts of torture and hostage-taking) perpetrated before 1 July 2002 can be prosecuted before Australian courts. I would introduce legislation to amend our ICC implementing legislation.

Critics would no doubt claim that the proposed legislation retrospectively criminalises conduct which at the time it was committed could not have been prosecuted in Australian courts. I would anticipate that criticism and answer it by reference to the majority opinion of the High Court in Polyukhovich upholding the constitutional validity of the 1989 amendments to the War Crimes Act 1945. There is a fundamental distinction between retrospectively criminalising conduct which at the time it was committed was not criminal and retrospectively extending the jurisdiction of Australian courts to conduct which was unquestionably criminalised by international law at the time it was committed.

Canada, New Zealand and the United Kingdom have all extended the jurisdiction of their national courts retrospectively to cover international crimes perpetrated outside their respective physical territories. Both Canada and New Zealand extended retrospective jurisdiction to their national courts at the time of the adoption of their ICC implementing legislation (both in 2000). The UK’s original ICC implementing legislation adopted in 2001 only had prospective effect. However, in November 2009, that legislation was amended to extend the jurisdiction of UK courts over war crimes, crimes against humanity and genocide retrospectively. The legislation requires the court to determine that the alleged act constituted an international crime at the time it was committed as a condition for the exercise of retrospective jurisdiction.

I would hope that with proper explanation and forthright advocacy both Parliament and the Australian people would understand the rationale for and support the adoption of the legislation. I understand of course that the existence of legislation does not automatically translate into its utilisation. The case of Dragan Vasiljkovic is again instructive. The allegations against him constitute grave breaches of the Geneva Conventions and of Additional Protocol I, such that he could have been tried in Australia pursuant to the Geneva Conventions Act 1957 (as amended in 1991). Despite this legislative framework, there is no evidence of any formal investigation into the allegations against him in this country, despite widespread knowledge in Australia of his alleged involvement in the conflict in Croatia from at least the mid-1990s. This purely reactive approach to an extradition request is simply not good enough for a country that proudly speaks of its commitment to international justice on the world stage. If we are not even prepared to act against one of our own citizens who travelled to the Balkans to fight on the side of his ethnic brethren and returned to Australia with allegations of atrocity against him, what hope is there that we will take a more proactive approach to those who have immigrated to Australia with similar allegations against them?

Having achieved the necessary legislative reform, my next policy initiative would be to reinstate the Special Investigations Unit – disbanded controversially in the early 1990s in the wake of failed litigation pursuant to the War Crimes Act against alleged former Nazis (including Ivan Polyukhovich). I would ensure the allocation of financial resources to rebuild the impressive investigatory expertise that the Unit had developed and I would appoint a Director who would emulate the intellectual acuity, skills, and vision to drive a concerted attack on impunity for atrocity that characterised the Founding Director of the SIU – the late Bob Greeenwood QC. As the newly reformed SIU investigated allegations around the country I would feel content that I had made a significant contribution to justice and to the enhancement of our national commitment to the Rule of Law.

Tim McCormack is Professor of Law at Melbourne Law School and Special Adviser on International Humanitarian Law to the Prosecutor of the International Criminal Court, The Hague

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Found in Past Issues

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Publications & Resources » Pages

Past Issues

HRLRC Bulletin Vol 50 – June 2010

Opinion

Australia’s Role in the Promotion and Protection of Human Rights in the Asia-Pacific

News

Australia will Commit ‘Grave Breach’ of Human Rights Obligations if Deportation of Sheikh Proceeds

Australian Experts Shortlisted for Positions as Special Rapporteurs of the UN Human Rights Council

Vanuatu to become First Pacific Island State to Ratify Torture Convention

Major Australian Parliament Report on Human Rights in the Asia-Pacific: Challenges and Opportunities

Aboriginal Australian Academic Selected for UN Permanent Forum on Indigenous Issues

UN Special Representative Publishes Major Report on Further Developing Business and Human Rights Framework

Business and Human Rights: New Report on Company-Level Grievance Mechanisms

National Charter of Rights Developments

Attorney-General Announces Reforms to Strengthen Sex Discrimination Laws

Victorian Charter of Rights Developments

Statements of Compatibility under the Victorian Charter

Victorian Charter Case Notes

Supreme Court Orders Speedy Trial to Determine Prisoner’s Eligibility to Access IVF Treatment under Victorian Charter

Statutory Interpretation and Limitations on Rights

VCAT Considers Relevance of Charter to Availability of Payments for Childcare from Transport Accident Commission

Comparative Law Case Notes

Right to State-Funded Legal Aid in Coronial Inquest: Legal Aid Funding May be Necessary for State to Discharge Investigative Obligation

Imposition of Unreviewable Lifetime Reporting Requirements on Sexual Offenders a Disproportionate Intrusion on Private Life

Post-Sentence Detention Incompatible with Prohibition against Arbitrary Detention

Proof of Identity Requirements and Limitations on the Right to Vote

Refusal to Recognise Change of Ethnic Identity is Discriminatory and Breaches Right to Respect for Private Life

HRLRC Policy Work

Setting the Agenda: Policy Brief on Promoting Equality and Addressing Discrimination in Australia (24 May 2010)

Refugee Rights: Centre Publishes Opinion on Unlawfulness of Asylum-Seeker Processing Freeze

Human Rights and Counter-Terrorism: Submission to Senate Committee on National Security Legislation Reforms

Major Australian Parliament Report on Human Rights in the Asia-Pacific: Challenges and Opportunities

HRLRC Casework

Centre Assists Female Prisoner in Application for Access to Reproductive Health Care

Right to Health: Centre Intervenes in Coronial Inquest into Ectopic Pregnancy Death

Indigenous Rights: Complaint against Northern Territory Government by Remote Aboriginal Community

Centre Secures Access to Health Care for Psychiatric Patient

Seminars and Events

‘Human Rights at the Cross-Roads’ – Speech to 2010 Human Rights Dinner

18th Annual ANZSIL Conference: International Law in the 2nd Decade of the 21st Century

Educating for Human Rights, Peace and Inter-Cultural Dialogue

Public Interest Law Conference: Opportunities and Obstacles – Call for Papers

Human Rights Resources

HRLRC in the News

Australian Human Rights Grants Scheme – Call for Expressions of Interest

ISHR Launches New Periodic Publication on Key International and Regional Human Rights Developments

Human Rights Jobs

Opportunities with Australian Human Rights Commission and Victorian Equal Opportunity and Human Rights Commission

Activism Coordinator and Casework Coordinator with Amnesty International Australia

Foreign Correspondent

Developments from the UN and in International Human Rights Law and Practice

9th Session of the UN Permanent Forum on Indigenous Issues

If I Were Attorney-General…

Investigating and Prosecuting War Crimes and Crimes against Humanity

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