This is the March 2009 edition of the Human Rights Law Resource Centre Bulletin.

Download the full edition of the HRLRC Bulletin in PDF here.

This edition of the Bulletin includes:

• An opinion piece by Carroll Bogert, Associate Director of Human Rights Watch, on police brutality in PNG
• News about human rights, climate change and Indigenous rights and a major report on human rights and counter-terrorism
• Updates on a National Charters of Rights, including a brief on the potential impact of a federal Human Rights Act on religious beliefs and freedom, and information about how to engage with the National Human Rights Consultation, including through workshops
• Updates on the Victorian Charter of Rights, including new case studies released by the Centre on how the Charter is being used to address disadvantage and promote dignity, and an analysis of recent Statements of Compatibility
• Victorian Charter case notes, including balancing the principles of open justice and freedom of expression with the right to privacy (VCAT) and self-represented litigants and the right to a fair hearing (VCAT)
• Comparative law case notes on significant recent human rights decisions from the UK (balancing the right to a fair hearing with protection of vulnerable persons; the right to liberty and judicial review of detention; police powers, crowd control, and the right to liberty; and protest, freedom of expression and assembly), the European Court of Human Rights (right to a fair hearing and cross-examination of witnesses; and prisoners and the right to private and family life) and the ACT (interpretative principle)
• Information about the Centre’s policy work, including in relation to the Centre’s submission regarding the draft Corrections Regulations 2009 (Vic)
• Updates on the Centre’s casework and litigation, including a complaint to the UN Committee on the Elimination of Racial Discrimination in relation to the NT Intervention and suspension of the Race Discrimination Act
• Details of forthcoming human rights seminars and events, including a major HRLRC seminar on 2 March 2009 with Carroll Bogert, Associate Director of Human Rights Watch, one of the world’s leading human rights organisations
• Information about useful human rights resources, including a book review of Bills of Rights in Australia
• ‘If I were Attorney-General’ by Dr Susan Harris Rimmer, President of Australian Lawyers for Human Rights

Opinion

Law and Disorder: Australia Must Act to Address Police Brutality in Papua New Guinea

Who is most frightening to the average citizen of Papua New Guinea: sorcerers, the people who murder accused sorcerers, or the police who are supposed to protect the public from the other two?

The sad fact is that police in PNG, who should be part of the solution to a recent wave of sorcery-related attacks, are in fact a part of the problem.  A violent and abusive police force cannot fight crime effectively.  Australia, as the major international donor to the PNG police, should use its influence to help clean up the force.

Since 2004, Human Rights Watch has conducted investigations into police violence in six locations in Papua New Guinea and interviewed more than 275 people on this issue.  Our researchers found a dismal picture.  Police regularly engaged in severe beatings, rape and torture.  They often target young men – assumed to be ‘raskols’, or members of criminal gangs – for brutal treatment.  Boys as young as 12 years old described being whipped on the face with umbrella spokes, burned on the back with long sticks of cured tobacco, beaten with crowbars, slashed, and shot.  Police made no attempt to hide such tactics – it’s business as usual.

In the six areas of the country we visited to investigate police treatment of children, almost everyone we interviewed said that they were beaten when arrested.  Many showed us fresh wounds and scars consistent with their stories.  Doctors and nurses confirmed attending cases of people badly injured by police.  Social workers, staff of juvenile detention centres, and others working with child detainees said the vast majority of children they worked with were beaten.  One man told a Human Rights Watch researcher that police beat him and forced him to fight naked with other detainees in a Port Moresby police station when he was 16 or 17 years old.  As he put it: ‘We thought it was their job and we just had to accept it.’

Girls and women, as well as boys and men, report being raped in the bushes, in police cars, in police barracks and in police stations – often by more than one officer, which is known as ‘pack rape’ or ‘lineup sex’.  We documented several cases of women who were raped by police when they went to the station to report a crime.

Some police in PNG acknowledge that their ability to solve crimes is deteriorating.  The reasons are not hard to understand.  More than half the residents of Port Moresby reported a few years ago that they felt less safe when the police were around than when they were not present.  Communities outraged by police violence refuse to cooperate with criminal investigations.

To stop police violence, PNG officials need to take three clear steps: 1) government leaders should publicly repudiate police violence; 2) law enforcement bodies should monitor violent incidents; and 3) perpetrators of violence should be prosecuted as criminals.  At present, almost no police are held to account for their actions.  The head of internal investigations in Alotau in Milne Bay province, on the eastern end of mainland Papua New Guinea, explained to Human Rights Watch how he handled a typical case.  A 14-year-old boy claimed that police assaulted and robbed him, he said, but the boy could not name the officers (police often do not wear nametags).  ‘If he’s really concerned about his case, he should come back and assist me with my investigation,’ the officer told me.  ‘He gave all the work to me and went away and expects me to do the work.  Then I see they’re not concerned about the case, so I just sit down.’

As the largest international donor to PNG, Australia has a key role to play as well.  Canberra is providing almost A$390 million in development assistance this year.  And although PNG has been very reluctant to cooperate in some police matters, Australian Federal Police actively advise the government.  They should be doing more to push the PNG police to strengthen its internal affairs office and to create a full-fledged police ombudsman.  Most important, they should be insisting on prosecution of police who commit violent crimes.  Australia’s programs to train PNG police will have little value unless those who receive it are held accountable for following it.

Public outcry in PNG around sorcery killings has opened up an opportunity for Australia to push these issues.  The Prime Minister’s trip a year ago, the first in eleven years, should have helped to thaw the relationship.  Now the Parliamentary Secretary on International Development Assistance, Bob McMullan, and the top levels of AusAID need to make this issue a priority with their interlocutors in Port Moresby.  Just to have the issue of human rights somewhere on the agenda is not enough, with police misconduct rising to such extremes.  It needs to be front and centre.

Carroll Bogert is Associate Director of Human Rights Watch (www.hrw.org).  She will address the topic of ‘The Human Rights Spoilers and How to Deal with Them’ in a keynote address for the Human Rights Law Resource Centre on 2 March.  Carroll will be in Australia from 2 to 6 March to explore the possibility of establishing a Human Rights Watch office in Australia.

News

Human Rights, Climate Change and Indigenous Peoples

Principle 1 of the 1972 Declaration of the UN Conference on the Human Environment (the Stockholm Declaration) states that there is ‘a fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being’.

Due to climate change these fundamental rights are under threat.  For this reason the 10^th session of the Office of the UN High Commissioner for Human Rights produced its Annual Report on the relationship between climate change and human rights.  In this report the implications of climate change impacts on human rights are discussed along with the obligations of States under international human rights law to uphold these rights.  The report also identifies Indigenous peoples as one of three specific groups (along with women and children) whose rights stand to be particularly infringed upon by this crisis.  For this reason in particular, it is essential to uphold Indigenous peoples rights and to give this group a voice in climate change policy making.

On a global scale, the Intergovernmental Panel on Climate Change (IPCC) estimates that no less then one sixth of the world’s population is threatened by flood risk and strongly reduced water supplies as a result of climate change.  Along with these impacts, increased frequency of hot extremes and heatwaves, contraction of snow-covered areas and shrinking sea ice, increased intensity of tropical cyclones and increase drought, will dramatically affect peoples’ right to life, water, food, health and self-determination.  These rights are explicitly addressed by the OHCHR in this annual report, which outlines how climate change will ‘have implications for the enjoyment of human rights’.  The report also states that all the UN human rights treaty bodies recognize these rights.

Furthermore, in identifying women, children and Indigenous peoples as vulnerable groups, the report affirms that States are legally bound to address their identified vulnerabilities in accordance with the principle of equality and non-discrimination under international human rights law.

In Australia, Aboriginal and Torres Strait Islander peoples are especially vulnerable and susceptible to climate change.  This vulnerability is heightened by factors that include historical and on going discrimination, marked socio-economic disadvantage, and dispossession from their traditional lands and territories.

Torres Strait Islanders, in particular, share the risk of displacement with other Indigenous peoples living on low lying island States.  The king tide events in 2005 and 2006 have highlighted the vulnerability of the 2,000 Indigenous people in the Torres Strait living on central coral cays and north-west islands, with implications for short-term coastal protection and long-term relocation plans.

In its submission to the OHCHR report, the Environmental Defenders Office highlights that despite this obvious vulnerability and susceptibility, Australian climate law and policy reform has for the most part excluded the scope of Indigenous rights and interests on a comprehensive national basis.

On the international stage, the UN Declaration on the Rights of Indigenous Peoples recognizes their right to lead a healthy, prosperous life, in accordance with Indigenous peoples’ traditions.  It outlines the ‘minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world’ (Article 43).  Article 29 of the Declaration, also acknowledges Indigenous peoples’ ‘right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources.’  Although, 143 countries supported the Declaration, which indirectly commits the international community to act on climate change to preserve Indigenous rights, four dissenting votes came from countries with important Indigenous communities: Australia, Canada, New Zealand, and the United States.

Indigenous rights were also marginalised during the 14^th Conference of the Parties to the UN Climate Change Convention in Poznan, in December 2008.  Language referring to the Declaration on the Rights of Indigenous Peoples in the REDD (Reducing Emissions from Deforestation and Forest Degradation in Developing Countries) draft report was stricken from the final document.  Although a fair agreement on REDD may prove to be an important climate change mitigation tool and beneficial to Indigenous peoples, the lack of explicit language referring to the Declaration marginalizes their rights.

The OHCHR has acknowledged the demands of Indigenous peoples to lend their voices in policymaking on climate change at both national and international levels.  They have also taken into account the importance of building upon their traditional knowledge.

Australia and other states must take this into account and identify the urgent need for rigorous assessment of climate change impacts to preserve Indigenous rights.  This is essential if we as a global community are to uphold Principle 1 of the Stockholm Declaration and ensure the ‘fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being’ for all of the earth’s inhabitants.

Alex Grais is Policy Director of the Australian Youth Climate Coalition

Eminent Jurists Release Damning Report on Human Rights and Counter-Terrorism

In one of the most extensive studies of counter-terrorism and human rights yet undertaken, an independent panel of eminent judges and lawyers has presented alarming findings about the impact of counter-terrorism policies worldwide and called for remedial action. The Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, established by the International Commission of Jurists (ICJ), based its report ‘Assessing Damage, Urging Action’ on sixteen hearings covering more than forty countries in all regions of the world.

‘In the course of this inquiry, we have been shocked by the extent of the damage done over the past seven years by excessive or abusive counter-terrorism measures in a wide range of countries around the world.  Many governments, ignoring the lessons of history, have allowed themselves to be rushed into hasty responses to terrorism that have undermined cherished values and violated human rights.  The result is a serious threat to the integrity of the international human rights legal framework,’ said Justice Arthur Chaskalson, the Chair of the Panel, former Chief Justice of South Africa and first President of the South African Constitutional Court.

The report illustrates the consequences of notorious counter-terrorism practices such as torture, disappearances, arbitrary and secret detention, unfair trials, and persistent impunity for gross human rights violations in many parts of the world.  The Panel warns of the danger that exceptional ‘temporary’ counter-terrorism measures are becoming permanent features of law and practice, including in democratic societies.  The Panel urges that the present political climate may provide one of the last chances for a concerted international effort to take remedial measures and restore long-standing international norms.  The change in US administration provides a unique opportunity for change.

‘Seven years after 9/11 it is time to take stock and to repeal abusive laws and policies enacted in recent years.  Human rights and international humanitarian law provide a strong and flexible framework to address terrorist threats’, said Mary Robinson, former UN High Commissioner for Human Rights, former President of Ireland and current President of the ICJ.  ‘It is now absolutely essential that all states restore their commitment to human rights and that the United Nations takes on a leadership role in this process.  If we fail to act now, the damage to international law risks becoming permanent.’

The report calls for the rejection of the ‘war on terror’ paradigm and for a full repudiation of the policies grounded in it.  It emphasises that criminal justice systems, not secret intelligence, should be at the heart of the legal response to terrorism.

The Panel calls on policymakers to rely on civilian legal systems, utilize criminal courts and not resort to ad-hoc tribunals or military courts to try terror suspects.  The report repeatedly remarks upon the extent to which undemocratic regimes with deplorable human rights records have referred to counter-terror practices of countries like the US to justify their own abusive policies.

A copy of the report can be viewed at www.icj.org. 

National Charter of Rights Developments

What Impact would a Federal Human Rights Act have on Religious Beliefs and Freedoms?

The National Human Rights Consultation is prompting debate across Australia about a diverse range of issues, including the relationship between human rights and religion. 

In order to promote an informed and evidence-based discussion of this issue, the Human Rights Law Resource Centre has commissioned a Memorandum of Advice from a leading senior counsel, Brian Walters SC, and a barrister, Alistair Pound, which considers whether and how a national Human Rights Act would impact on religious beliefs and freedoms. 

The Advice considers, among other matters:

• Would a federal charter of rights result in a transfer of political power to the courts?
• What are the potential cultural impacts of a federal charter of rights?
• What impact might a federal charter of rights have on freedom of religious speech and expression?
• What impact might the recognition of a right to life in a federal charter of rights have on issues such as abortion and euthanasia?
• What impact might the recognition of a right to equality and protection from discrimination in a federal charterof rights have on the ability of religious bodies to discriminate on the basis of religion?

The Advice is available at www.hrlrc.org.au under National Human Rights Consultation>Materials and Resources. 

National Human Rights Consultation Workshops for Community Legal Centres, Organisations and Advocates

The Human Rights Law Resource Centre is in the process of preparing materials and conducting a number of thematic workshops that address the relationship between human rights and disability, women, Indigenous Australians, asylum seekers and newly arrived Australians, mental health and older people.

These workshops and materials are designed to assist organisations working in these areas to:

• prepare a submission to the National Human Rights Consultation; and
• conduct consumer forums with their clients to empower them to also write a submission.

Details of the workshops are as follows:

• Women – This workshop was held on 9 February 2009. Materials are available at www.hrlrc.org.au under National Human Rights Consultation>Workshops and Submission Toolkits.
• Community Legal Centres - A workshop for specialist community legal centres was held from 11.30am to 1.30pm on 17 February at Trades Hall, cnr Lygon and Victoria Streets, Melbourne. A workshop for generalist community legal centres was held from 2pm to 4pm on 17 February at Trades Hall, Melbourne. For further details, email ben.schokman@hrlrc.org.au.
• Asylum Seekers and Refugees – This workshop was held from 5pm to 6pm on 23 February 2009 at Mallesons Stephen Jaques, Level 50, 600 Bourke Street, Melbourne. For further details, email rachel.ball@hrlrc.org.au.
• Indigenous Australians - This workshop will be held from 10.45am to 12pm on 12 March at the Koorie Heritage Trust, 295 King Street, Melbourne. For further details, email Maryam Minai at lawyer3@hrlrc.org.au.
• Older People – This workshop will be held from 12.30pm to 2pm on 18 March 2009 at Minter Ellison, Level 23, 525 Collins Street, Melbourne. For further details, email Helen Conrad at lawyer2@hrlrc.org.au.
• People with Disability – Details to be announced. For further details, email ben.schokman@hrlrc.org.au.
• Mental Illness - This workshop will be held from 6 to 7pm on 31 March 2009 at Blake Dawson, Level 26, 181 William Street, Melbourne. For further details, email emily.howie@hrlrc.org.au.

A Human Rights Act for Australia?

How can your community sector organisation be involved in the National Human Rights Consultation?

This interactive workshop, presented jointly by the Public Interest Law Clearing House (Vic) and the Victorian Council of Social Service, will explain the National Human Rights Consultation process and identify how Community Sector Organisations can get involved.  It will examine the current system for the protection and promotion of human rights, and workshop how a national human rights charter might better protect the rights of marginalised or disadvantaged people.

Date:      3.00 – 5.30pm, Tuesday, 24 March 2009

Venue:   Blake Dawson, Level 26, 181 William Street, Melbourne

RSVP:    Please register at www.pilch.org.au/human_rights_consultation/ by 10 March 2009. 

The workshop will be presented by Stephanie Cauchi, Policy Analyst in Human Rights and Justice at VCOSS, and Simone Cusack, Public Interest Lawyer with the Public Interest Law Clearing House.  For further information, please contact Stephanie Cauchi (stephanie.cauchi@vcoss.org.au) or Simone Cusack (simone.cusack@pilch.org.au).

Let’s Talk About Rights

Australian Human Rights Commission Launches National Human Rights Consultation Toolkit:

The Australian Human Rights Commission has launched ‘Let’s Talk About Rights’, a toolkit to assist organisations and individuals to participate in the National Human Rights Consultation.

The toolkit consists of a general document, accompanied by the following information sheets:

• Human rights and Aboriginal and Torres Strait Islander peoples
• Human rights and asylum seekers and refugees
• Human rights and children and young people
• Human rights and counter terrorism laws
• Human rights and faith-based communities
• Human rights and gay, lesbian, bisexual, transgender and intersex people
• Human rights and housing and homelessness
• Human rights and people from culturally and linguistically diverse backgrounds
• Human rights and people with a disability
• Human rights and older people
• Human rights and women
• A Human Rights Act for Australia: commonly asked questions.

The toolkit is available at http://www.humanrights.gov.au/letstalkaboutrights/. 

Kate Temby is Acting Director of the Human Rights Unit at the Australian Human Rights Commission. 

Victorian Charter of Rights Developments

Case Studies: How a Human Rights Act can Promote Dignity and Address Disadvantage

The Human Rights Law Resource Centre continues to collect real life case studies which illustrate how human rights laws can be used to encourage common-sense policies and decisions that promote human dignity and addresses disadvantage.  The case studies demonstrate the ways in which the Victorian Charter is being used in areas such as disability, aged care, education, mental health and homelessness.

To share your story of where human rights have made a positive difference, please contact Rachel Ball at rachel.ball@hrlrc.org.au or on (03) 8636 4433.  Your privacy is respected and all stories will be de-identified. 

The case studies are available at www.hrlrc.org.au under National Human Rights Consultation>Case Studies. 

Below is a selection of new and recent case studies.

Including Human Rights in Local Government Planning

A local council released a draft copy of its four-year community plan that identifies community needs, priorities and strategies; and actions for new and improved community services, facilities and programs to be implemented by the council over the life of the plan.

A local community group expressed concern that nowhere did the draft plan refer to human rights or the council’s obligations in relation to rights. The group recommended that council include explicit reference to rights and included particular reference to rights in relation to age, Indigenous identity and disability.

The council adopted most of the group’s recommendations and as a result:

• undertook to review its decision-making processes;
• considered its obligation to ensure equality in the provision of, and access to council services and facilities;
• reviewed its code of conduct for staff and councillors; and
• considered how best to proactively promote consultation and feedback opportunities via a range of accessible means.

Relevant Human Rights: recognition and equality before the law; freedom of expression; taking part in public life; cultural rights. 

Source: Victorian Equal Opportunity and Human Rights Commission, ‘Your Rights, Your Stories’ at http://www.humanrightscommission.vic.gov.au/human%20rights/your%20rights%20your%20stories/

Protecting the Right to Vote of People with Disability

A local disability provider implemented a new system in which its routine assessment of client needs included explicit consideration of their human rights through the use of a mandatory Human Rights Checklist.  Any issues identified by staff were then referred to a Human Rights Committee for review, with the Committee making recommendations to the person’s case manager.

Through the implementation of these new processes, the services became aware of a number of people with intellectual disabilities whose ability to exercise their right to vote had been restricted.  The service took immediate steps to support them to make individual decisions about how they would vote, even though this was often against the wishes of their carers.

Relevant Human Rights: recognition and equality before the law; freedom of expression; taking part in public life; freedom of thought, conscience, religion and belief. 

Source: Victorian Council of Social Service, Using the Charter in Policy and Practice, (July 2008) reported in Victorian Equal Opportunity and Human Rights Commission, ‘Your Rights, Your Stories’ at http://www.humanrightscommission.vic.gov.au/human%20rights/your%20rights%20your%20stories/

Promoting Flexible Decision-Making

A woman who was the sole carer for her elderly parents (one of whom had recently suffered a stroke and the other had dementia) was issued with a notice from the local council that the accommodation she had arranged for her parents was contrary to planning approvals.  The woman’s legal representative wrote to the council asking them to consider the right to privacy and family life and the council granted the woman extra time to make alternative arrangements for her parents. 

Relevant Human Rights: right to privacy and protection of families.

Source: Darebin Community Legal Centre.

Local Government Recognises Special Needs and Circumstances

Business vendors in a regional CBD were calling on a local council to introduce a ‘move on and stay away’ by-law that would apply to those displaying antisocial behaviour.  The council rejected the move on human rights grounds, saying that such a law would disproportionately affect already marginalised groups such as homeless people and Indigenous groups and that it would restrict people’s right to be in a public place. 

Relevant Human Rights: equality before the law; right to privacy; freedom of movement.

Source: Eugene Duffy, ‘Move on Powers Rejected’ Bendigo Advertiser, 22 August 2008. 

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. 

Serious Sex Offenders Monitoring Amendment Bill 2009

The Serious Sex Offenders Monitoring Amendment Bill 2009 seeks to clarify the existing legislative test for a Court making and reviewing certain supervision orders under the Serious Sex Offenders Monitoring Act 2005 (Vic).  The primary purpose of the Act is to protect the community from the likely commission of serious sexual offences. 

The Act specifies that an extended supervision order (‘ESO’) may only be made in respect of an offender where the Court is satisfied that the offender is likely to commit a serious sexual offence if released into the community.  Similarly, on review, an ESO must be revoked unless the court is satisfied that the offender is likely to commit a serious sexual offence if released into the community.

The Bill clarifies these legislative tests in two significant respects:

• by defining the term ‘likely’ as meaning a real and ongoing risk that cannot sensibly be ignored, having regard to the nature and gravity of the possible offence; and
• by stating that the relevant threshold for likelihood is lower than the standard of ‘more likely than not’.

This latter clarification overrides the Court of Appeal’s decision in RJE v Secretary of the Dept of Justice [2008] VSCA 265, in which the Court held that the term ‘likely’ (as used in the context of the Act) required that an offender be ‘more likely than not’ to commit a further serious sexual offence if unsupervised.  In RJE, the appellant was subject to an ESO lasting 10 years, following his release from a 10-year term of imprisonment for sexual offences against children.  After examining expert reports of RJE’s prior offences, the Court of Appeal concluded that the risk of re-offending over the next 10 years was well under 40 per cent.  Applying the ‘more likely than not’ test, the Court concluded that RJE did not meet the statutory threshold of ‘likely’ to reoffend and revoked the appellant’s ESO.  This interpretation of ‘likely’ as meaning ‘more likely than not’ has, however, now been overturned by the Bill.

An ESO places certain conditions on an offender limiting the offender’s rights to privacy, liberty and freedom of movement.  By clarifying the test for making and reviewing an ESO, the Bill sets out the circumstances in which those limitations may be authorised and, in doing so, indirectly affects the rights of offenders. 

The Bill’s Statement of Compatibility notes that, although the Bill authorises limitations on offenders’ rights to privacy, liberty and freedom of movement, these limitations are justified under s 7(2) of the Charter.  According to the Statement, s 7(2) requires a balance between the rights of the offenders and the rights of the community.  The Statement considers that the limitations imposed on offenders’ rights by ESOs are reasonable and justifiable, for the following reasons:

• the test for imposing an ESO takes into account both the likelihood of reoffending and the nature and gravity of the potential offence;
• the restrictions imposed on offenders under an ESO vary depending on the individual circumstances of the offender and must be ‘necessary’ to achieve the aims of either adequate community protection or promotion of the rehabilitation, care or treatment of the offender; and
• the Act contains important safeguards in relation to the operation of ESOs, including the fact that ESOs are imposed by a Court (rather than the executive), that ESOs are subject to mandatory review every three years and that offenders subject to ESOs are entitled to judicial review.

Edwina Chin, Human Rights Law Group, Mallesons Stephen Jaques

Victorian Charter Case Notes 

Balancing Open Justice, the Right to Privacy and Freedom of Expression

XFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96 (9 February 2009)

The Victorian Civil and Administrative Tribunal has confirmed that society’s interests in an individual’s rehabilitation can override the principle of ‘Open Justice’ and the right to freedom of expression.  Herald and Weekly Times Pty Ltd (‘HWT’) applied to lift an order suppressing the identity of a man who had previously been acquitted of murdering his wife by reason of insanity and had recently been issued a taxi driver’s licence.  VCAT declined to revoke the order because publication of the man’s identity could adversely affect his rehabilitation.

Facts

In 1992, XFJ was acquitted of murdering his wife for reason of insanity.  He was released from a psychiatric institution conditionally in 1997, then unconditionally in 2003.  In both 1997 and 2003, the Supreme Court of Victoria made orders suppressing the man’s identity.

In 2008, XFJ appealed a decision of the Director of Public Transport to refuse XFJ a taxi licence.  In the course of that proceeding, VCAT made orders suppressing the man’s identity and closing the case file from public inspection.

In November 2008, the Herald Sun reported on XFJ’s attempts to get a taxi licence.  The front page story carried the headline ‘Killer Cabbie on our Roads‘.  The publisher of the Herald Sun, HWT, applied to VCAT for the suppression order to be lifted.

Decision

Deputy President Macnamara refused to lift the suppression order in light of a number of factors.

HWT argued that the principle of Open Justice dictated that the man’s identity should not be subject to a suppression order.  They further submitted that, in accordance with the right to freedom of expression (Charter s 15), the Herald Sun should be allowed to publish the man’s name and photo.  HWT argued that the principles of Open Justice and freedom of expression were of primary importance, and should only be departed from in exceptional circumstances.  HWT argued that the order in this case was not ‘necessary’ and did not did not justify departure from the paramount principles.  Furthermore, the taxi licence application had been determined, therefore publication of the man’s identity would not adversely affect either party’s interests in that application.

HWT also argued that XFJ had been in good psychiatric health for many years, therefore his rehabilitation would not be adversely affected by the publication of his identity and any related publicity.  The Deputy President held that this argument was unconvincing and ironic, since HWT had only recently labeled XFJ an ‘insane killer’ on the front page of its largest circulating daily newspaper.  The Deputy President said that HWT’s ‘sensational reporting … laced with emotive language and replete with inaccuracies, describing him as ‘insane’ and as ‘a murder’ has the capacity to set back his rehabilitation for years’.

VCAT held the public’s primary interest in this case was in the man’s rehabilitation, and his return to society as a useful citizen.  Any publication of the man’s identity might adversely affect his rehabilitation, and therefore would not be in the public’s interest.  The public interest in the man’s rehabilitation justified the departure form the principle of Open Justice and limitation of the right to freedom of expression.  It was relevant that the man had never been convicted of a crime, had a recent history of good mental health, had been working in the aged care industry without incident, and that the Supreme Court had also made order suppressing the man’s identity.

HWT also argued that potential taxi passengers have a right to know the man’s identity.  VCAT held that this was not a human right, and was outweighed by the public’s interest in the man’s rehabilitation.

Application of the Victorian Charter

The Deputy President contrasted the freedom of expression in s 15 of the Charter with the United States’ Free Speech clause in the First Amendment.  In the US, free speech is an overriding right which trumps other rights.  In contrast, there is nothing in the Charter which indicates that the right to freedom of expression should trump other rights.  In fact, the right to freedom of expression is expressly subject to lawful restrictions.  As such, the right should be balanced against other rights and considerations.  VCAT’s power to grant suppression orders under the Victoria Civil and Administrative Tribunal Act 1998 is a ‘lawful restriction’ which can limit the right to freedom of expression.

Additional matters relating to the Charter but not explored in the reasons include:

• According to s 24(3), decisions should be made public unless ‘the best interests of a child otherwise requires or a law other than this Charter otherwise permits’. In this case, the decision was made public but XFJ’s identity was withheld, such order being made under the VCAT Act. In addition to the factors discussed above, there was also some suggestion in this case that the best interests of the man’s child should prevent the suppression order being lifted. This matter was not determined since VCAT held that the public interest in the man’s rehabilitation alone justified the suppression order.
• The right to privacy and reputation is enshrined in s 13 of the Charter. In this case, there is a question as to whether publication of the man’s identity would unduly interfere with his right to privacy and reputation. VCAT highlighted the fact that the Herald Sun had published that the man was ‘a murderer’ despite the fact that the man had never been convicted of a crime. Arguably, such ‘sensational reporting … replete with inaccuracies’ would amount to an unlawful attack on the man’s reputation. As such, the right to privacy and reputation would tend to support continuance of the suppression order.
• Section 8 provides that each person is entitled to the equal protection of the law without discrimination. Accordingly, XFJ has the same right to any Charter protections as any other person, notwithstanding the fact that he had previously been acquitted of a crime due to what was at the time the equivalent of mental incapacity.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/96.html. 

Helen Conrad is on secondment to the Human Rights Law Resource Centre from Mallesons Stephen Jaques

Self-Represented Litigants and the Right to a Fair Hearing

Davies v Commonwealth Bank of Australia Ltd (Credit) [2009] VCAT 90 (28 January 2009)

This case considered the correct approach to be followed in dealing with unrepresented litigants and balancing their rights to a fair trial and access to justice with defendants’ rights.

Facts

Unrepresented applicants sought to challenge their mortgage with the CBA and seek various kinds of relief by raising arguments under the Consumer Credit (Vic) Code, the Fair Trading Act 1999 and the VCAT Act 1998. 

The Tribunal noted that being unrepresented, the applicants could not be expected to draft particulars in a way a lawyer might.  VCAT is framed to assist self-represented litigants to represent themselves and the Tribunal can determine a case as informally as the case permits.

Application of the Victorian Charter

The Tribunal articulated an approach to be followed by courts, tribunals (and, arguably, represented parties) in dealing with unrepresented litigants to protect the right to a fair trial and meaningful access to justice.

The Deputy President relied on the Supreme Court decision in Tomasevic v Travaglini [2007] VSC 337 to articulate this approach.  A court or tribunal must ensure the unrepresented litigant understands the process that must be followed and has ‘a proper chance to put his or her case’. 

Importantly, the Tribunal considered the limits of its role.  The approach requires that ‘[E]xtra information and assistance need to be given, but the court or tribunal is not an advocate.’  Accordingly, it will be sufficient if an unrepresented litigant can simply tell his or her story.  To require an unrepresented litigant to ‘fully characterise that story in terms of the law … would deprive that litigant of access to justice’.  In this case, the Tribunal required the applicants particularise their claim more clearly and with less repetition so that the CBA could properly reply: ‘there must come a point beyond which the lack of particularisation of the claim can become so unfair to the other party that the claim ought not to proceed’.

The Tribunal ordered the applicants to file specific and precise details of their claim, the facts on which they rely and what exactly they seek from the Tribunal.  As far as they can, the applicants are to say what laws relate to their claim and the CBA are to accept that being unrepresented, this statement will be incomplete.  If the facts are clear, this will ‘ensure a fair hearing for all, as the Charter … requires.’

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/90.html. 

Phoebe Knowles is on secondment to the Human Rights Law Resource Centre from Minter Ellison

Comparative Law Case Notes

Reliance on Witness Statement where Cross-Examination not Available may Violate Right to a Fair Hearing

Al-Khawaja and Tahery v United Kingdom [2009] ECHR 26766/05 (20 January 2009)

The European Court of Human Rights has held that allowing a witness statement to be admitted as evidence where the witness is not available for cross examination and that evidence is the sole or decisive basis for convicting the accused violates the right to a fair trial provided in arts 6 § 1 and 6 § 3(d) of the European Convention on Human Rights.

Facts

The judgment concerned two applications against the United Kingdom under art 34 of the European Convention on the basis that admitting into evidence a witness statement where the witness would not be giving evidence in person violated the right to a fair trail and the right to cross-examine witnesses in art 6 of the Convention. 

The first applicant, Mr Al-Khawaja, was charged with two counts of indecent assault.  One of the complainants made a statement to the police, but committed suicide prior to the trial.  After a preliminary hearing determining its admissibility, the complainant’s statement was put before the jury with the trial judge’s caution that it had not been possible to cross-examine the witness.  The applicant was convicted.  His appeal was dismissed and he was refused leave to appeal to the House of Lords.

The second applicant, Mr Tahery, allegedly stabbed his victim in the back three times and was charged with wounding with intent.  A witness who made a statement to the police saying that he saw the stabbing was too afraid to give evidence before a jury.  The trial judge ruled that his witness statement could be read and admitted as evidence.  The applicant was convicted by majority.  He appealed on the basis that his inability to cross-examine the witness infringed his right to a fair trial.  The Court of Appeal upheld the trial judge’s reasoning and he was refused leave to appeal to the House of Lords. 

Domestic Legislation

In both instances, domestic legislation provided for the admissibility of witness statements in certain circumstances.  In Al-Khawaja, the relevant legislation was s 23 of the Criminal Justice Act 1988, which allows a witness statement to be admitted as evidence where the witness is dead or unfit to attend trial and the judge considers admitting the evidence to be in the interests of justice.  In Tahery, the relevant legislation was s 116(2)(e) of the Criminal Justice Act 2003, which allows a court to admit a statement where a witness is unavailable to give oral evidence because of fear or intimidation, and it is in the interests of justice to do so.

Arguments

The applicants argued that the decision to admit the witness statements violated their right to a fair trial under arts 6 § 1 and 3(d) of the Convention.  Article 6 § 1 provides a general right to a fair trial and art 6 § 3 lists the minimum rights for a person charged with a criminal offence, including the right ‘to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses set out against him.’

The United Kingdom argued there was no absolute rule that a conviction could not be based solely or to a decisive extent on evidence given by an absent or anonymous witness and that the proceedings, when considered as a whole, were fair.  In both instances, the UK argued that the relevant legislation provided sufficient safeguards and the trial judges had correctly applied the relevant tests and concluded that it was in the interests of justice to admit the evidence. 

Decision

The European Court of Human Rights upheld the appeals, finding that, in both instances, the admission of the witness statements constituted a violation of the applicants’ rights to a fair trial.  The Court awarded each applicant €6,000 in non-pecuniary damages and €11,898 for costs and expenses.

The Court noted that the provisions listed in 6 § 3 are minimum rights and therefore must be read as express guarantees, not merely as factors to be taken into account in assessing whether a fair trial has been held.  Even if these minimum rights are met it is still necessary to determine whether the proceedings as a whole were fair and satisfied the general right in art 6 § 1.

The Court held that the starting point in assessing whether there has been a breach of art 6 § 3 should be the principles established in Lucà v Italy, No. 33354/96, § 40, ECHR 2001-II:

• if the defendant has the opportunity to challenge depositions, either when they are made or after, they will be admissible without contravening the section; and
• if a conviction is based solely or to a decisive degree on depositions by someone who the accused has not had the opportunity to cross-examine, then admitting the statements as evidence will be a violation of the rights protected by art 6.

The Court distinguished previous cases which admitted untested statements on the basis of special factors, such as the fact that the witnesses could not appear for fear of the defendants, which made it justifiable to admit the statements.  Absent such special factors, the Court doubted ‘whether any counterbalancing factors would be sufficient to justify the introduction in the evidence of an untested statement which was the sole or decisive basis for the conviction of the applicant.’  In the present cases, the Court was not satisfied that the prejudice to the defendants was sufficiently counterbalanced by factors including the warnings given by the domestic courts to approach the untested evidence with care. 

Relevance to the Victorian Charter

The decision in the cases of Al-Khawaja and Tahery suggests that, except in very limited special circumstances, allowing a witness statement to be admitted if it is the sole and decisive evidence in establishing a conviction will violate the right to a fair trial.  This holds true regardless of counter-balancing factors that can be taken into account according to the domestic evidence legislation.

However, the extent to which this decision will be applicable in the Victorian context is unclear because of differences in the wording of the human rights statutes.  Like the European Convention, the Victorian Charter preserves the right to a fair trial (s 24) and guarantees the right to call and cross-examine witnesses in criminal proceedings (s 25(2)(g)).  Section 25(2)(g), however, qualifies the right as ‘unless otherwise provided for by law’.  This specific direction suggests that, in a Victorian context, any legislative provisions (eg in the Victorian Evidence Act) setting out grounds on which witness statements could be admitted in these circumstances could be an overriding consideration.

Katherine Payne and Peter Henley, Human Rights Law Group, Mallesons Stephen Jaques

Is Refusal to Attend a Funeral a Breach of the Right to a Private and Family Life for Prisoners?

Czarnowski v Poland [2009] ECHR 28586/035 (20 January 2009)

The Applicant, Mr Edward Czarnowski, lodged an application with the European Court of Human Rights against Poland for breach of art 8 of the European Convention on Human Rights.  Art 8 provides:

Everyone has the right to respect for his private and family life…

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Facts

The applicant is a Polish national who was charged and convicted of domestic violence for physical and verbal abuse of his girlfriend between June 1998 and October 1999.  In 2000, a District Court in Poland sentenced the applicant to a one-year period of imprisonment suspended on probation for four years.  It appears that, in 2002, the applicant breached the terms of his probation and as a result his sentence was enforced.  He commenced serving his prison term in April 2003.

On 18 July 2003, the applicant’s father died.  On 20 July, the applicant’s girlfriend delivered him his father’s death certificate.  On 21 July, the applicant made a formal application for leave to attend his father’s funeral, which was to be held on 22 July.  The relevant domestic law of Poland provides that ‘in cases which are especially important for a convicted person, he or she may be granted permission to leave prison… if necessary under the escort of prison officers or other responsible persons.’

On the same day that the application for leave was lodged, the Penitentiary Judge of the local Regional Court refused it, on the basis that ‘the grounds relied on [by the applicant] to justify allowing him to leave the prison cannot be considered especially important.’  The judge did not elaborate.  The decision was notified to the applicant the following day.  The applicant did not exercise his right to appeal the decision as the funeral had already taken place and thus he considered such an appeal to be without purpose.

The applicant submitted that the authorities’ refusal to allow him to attend his father’s funeral caused him suffering and humiliation.  He submitted that he had already served more than three months of his 12 month sentence, during which time he had often been commended on his good behaviour.  He had also maintained contact with his family and relatives during his imprisonment and, in his submission, all these circumstances should have been taken in to consideration when determining his application for leave to attend his father’s funeral.

The Government submitted that the applicant had been convicted of domestic violence and had breached the terms of his probation.  They further submitted that the applicant had lodged his formal request for leave late, that is on 21 July rather than when he first learned of his father’s death on 20 July, which left the authorities with only limited time to respond.  The Government also submitted that its refusal to grant leave to the applicant was influenced and/or supported by an opinion provided by the Director of the Prison in which he recommended that leave not be granted and allegedly stated that the applicant had a ‘negative criminal and social forecast’.

The President of the Court also granted leave for submissions to be made by a third party, the Helsinki Foundation for Human Rights.  HFHR underscored the importance of temporary leave for the purpose of re-socialisation of prisoners and pointed out a number of shortcomings surrounding regulation of compassionate leave for prisoners, in particular the wide discretion left to the State in determining what constitutes ‘especially important’ circumstances, the lack of reasoning provided by the State for its determination, the requirement to produce a death certificate and the absence of a right to an adequately expedited appeal.

Decision

The Court noted that any interference with one’s right to respect for his private and family life will constitute a breach of art 8 unless it was in accordance with the law, pursued a legitimate aim or aims under paragraph 2 and was ‘necessary in a democratic society’ in the sense that it was proportionate to the aims sought to be achieved (at 25).  The Court emphasised that even if a detainee by definition must be subjected to limitations of his rights and freedoms, every such limitation must be justifiable as necessary in democratic society.  Necessity, the Court stated, implies that the interference with one’s rights corresponds to a pressing social need and is proportionate to the legitimate aims pursued.

In the absence of any submissions to the contrary, the Court found that the domestic authorities’ refusal to allow the applicant to attend his father’s funeral constituted an interference with his right to respect for his private and family life.  The Court noted that such interference was ‘in accordance with the law’ of Poland and could be considered to be in the interests ‘public safety’ or ‘for the prevention of disorder or crime’.  The question for the Court was thus whether or not this interference was proportionate to the aim of protecting the public and/or preventing disorder or crime and thus could be described as necessary in a democratic society.

The Court observed the nature of the applicant’s crime and the severity of his sentence.  It noted that there was no indication that the applicant was a dangerous criminal or part of an organised crime gang and no evidence that the applicant had tried to evade authorities or avoid his punishment.  It noted that the applicant had no criminal record, thus he could be not described as a habitual offender whose return to prison could not be guaranteed.  It noted that the Prison Director’s recommendation regarding the applicant’s request was not supported by facts.

Importantly, the Court censured the domestic authorities for failing to give any meritorious reasons for its decision that the Applicant’s situation was not ‘especially important’.  It noted that the Penitentiary Judge’s decision gave no consideration to measures expressly provided for by law which could have facilitated and secured the applicant’s say outside the prison, such as the possibility of escorted leave, and failed to take in to account the Court’s earlier decision in the mater of Ploski v Poland (no. 26761/95, § 38, 12 November 2002), which related to very similar circumstances. The Court did not accept that the applicant was negligent in submitting his request for leave to attend his father’s funeral when he did, noting that it was the Monday immediately following the Sunday when he received his father’s death certificate and that the Penitentiary Judge was able to deliver his decision on the same day the request was lodged.

The Court noted that there are financial and logistical considerations to be taken into account including shortages of police and prison officers and also the ‘seriousness’ of refusing an individual the right to attend the funeral of his parent.  The Court opined that the respondent State could have refused attendance only if there had been compelling reasons and if no alternative solution – like escorted leave – could have been found (at 32).  It was held that the refusal of leave to attend his father’s funeral was not necessary in a democratic society as it did not correspond to a pressing social need and was not proportionate to the legitimate aims pursued and therefore constituted a violation of art 8 of the Convention.

Relevance to the Victorian Charter

This decision is relevant to ss 13 and 17 of the Victorian Charter.  Section 13 states, inter alia, that a person has the right ‘(a) not to have his or her privacy [or] family… unlawfully or arbitrarily interfered with.’  Moreover, s 17 reinforces and arguably augments the right to respect for one’s family insofar as it states, inter alia, that: ‘(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.’  In accordance with s 7(2) of the Charter, each right is ‘subject at law only to such reasonable limits as can be demonstrably justified in a free and democratic society’.  This decision provides a useful example of how an individual’s human rights, and in particular the right to respect for one’s family, can be curbed only by compelling reasons.

Briohny Coglin is a lawyer with Minter Ellison

Balancing the Right to a Fair Hearing with the Protection of Vulnerable Persons

Wright & Ors v Secretary of State for Health & Anor [2009] UKHL 3 (21 January 2009)

The House of Lords has recently issued a declaration of incompatibly under the Human Rights Act 1998 (UK) (‘HR Act’) in relation to the Care Standards Act 2000 (UK) (‘Act’).  The House of Lords held that the Act may irreparably damage the employment or employment prospects of persons suspected of posing a risk of harm to vulnerable adults.  It is therefore incompatible with the right to a fair hearing and the right to respect for private and family life. 

Facts

The Act aims to protect vulnerable adults requiring special care from care workers who pose a risk to vulnerable adults.  Under the Act, care workers can be placed on a list of people considered unsuitable to work with vulnerable adults (the ‘POVA list’), effectively preventing such persons from working as care workers.

The Act enables a lengthy administrative review process to take place before a person is permanently placed on the POVA list, but does not provide an opportunity for judicial hearing.  During the administrative review process, the person is provisionally placed on the list.  The House of Lords considered whether the provisional listing of workers is compatible with the rights to a fair hearing and to respect for private and family life under arts 6 and 8 of the European Convention on Human Rights.

Decision

High Court of England and Wales

The High Court of England and Wales (‘EWHC’) held that the automatic provisional listing of a care worker breached the right to a fair hearing (art 6).  Stanley Burnton J held that the effect of provisionally listing a worker on the POVA list is to terminate the worker’s employment on the ground of alleged misconduct without providing them any opportunity to be heard.  While there is a process in place for judicial review of the Secretary of State’s decision to place a care worker on the POVA list, this process does not cure the breach because the Secretary of State is not required to decide whether the alleged misconduct took place.  The Act simply requires the Secretary of State to be of the opinion ‘that the provider reasonably considered the worker to be guilty of misconduct…which harmed or placed at risk of harm a vulnerable adult and that the worker is unsuitable to work with vulnerable adults’ (emphasis added).

Stanley Burnton J further concluded that, for the above reasons, the Act disproportionately interferes with the personal relationships that care workers have with their colleagues, individual clients and others, in breach of art 8.

The EWHC accepted that it is necessary to protect vulnerable adults while cases are investigated, but held that the scheme disproportionately limits the rights of care workers.  As a result, the EWHC found that the section of the Act that required the provisional listing of a care worker pending final determination is incompatible with the rights afforded by arts 6 and 8 of the Convention.

Court of Appeal

The Court of Appeal accepted that the Act engaged art 6 of the Convention, but considered that a breach could be avoided by interpreting the relevant section in a human rights compatible way in accordance with s 3(1) of the Human Rights Act 1998 (UK).  The Court of Appeal considered this to be possible by reading in a requirement that a worker be given an opportunity to make representations before being provisionally placed on the POVA list, ‘unless the Secretary of State reasonably considers that the delay resulting from affording such an opportunity would place the vulnerable adult at risk of harm’.  The Court considered it unnecessary to determine whether there had been a breach of art 8.

House of Lords

In a unanimous decision, the House of Lords concluded that the procedure for provisional listing breaches the right to a fair hearing under art 6 and has the potential to breach the right to respect for private and family life under art 8.  The House of Lords therefore declared the offending section of the Act to be incompatible with the Convention rights.

A civil right?

The House of Lords held that the fact that the Act deals with a civil right is uncontroversial.  Baroness Hale held that civil rights include ‘the right to practise one’s profession’, ‘the right to remain in the employment one currently holds’ and ‘the right to engage in a wide variety of jobs in the care sector even if one does not currently have one’.  

A determination?

A more controversial question was whether provisional listing amounts to a ‘determination’ of a civil right for the purpose of art 6(1), particularly given that the person affected could eventually be heard by the Care Standards Tribunal.  The European Court of Human Rights has held that:

Article 6 does not apply to proceedings relating to interim orders or other provisional measures adopted prior to the proceedings on the merits, as such measures cannot, as a general rule, be regarded as involving the determination of civil rights and obligations. 

However, Baroness Hale held that the often irreversible and incurable detrimental effect of provisional listing placed it within the exception to that general rule.  Provisional listing is an interim measure that has ‘such a clear and decisive impact upon the exercise of a civil right that art 6(1) does apply’. 

Baroness Hale concluded that ‘the process does not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing upon her possibly irreparable damage to her employment or prospects of employment’. 

The House of Lords considered the solution proposed by the Court of Appeal to be insufficient because it still failed to ensure the urgent determination of allegations against care workers and thereby protect workers against irreparable damage.

Relevance to the Victorian Charter

This case sheds light on the potential interaction between the Charter and similar schemes in Victoria which restrict the ability of certain persons to work with children.  In particular, it emphasises the relevance of the Charter rights to privacy and reputation (s 13) and a fair hearing (s 24).

The Working with Children Act 2005 (Vic) (‘WWC Act’) requires a person who works or volunteers in connection with certain types of ‘child-related work’ to pass a working with children check.  If the Secretary to the Department of Justice proposes to issue a negative notice, the Secretary must notify the applicant why and invite the applicant to make submissions before the Secretary finally decides the application.  However, the Secretary must issue the applicant an interim negative notice.  Both the applicant and the Secretary are obliged to notify the applicant’s employer of the interim negative notice. 

While it is not an offence under the Act to employ a person subject to an interim negative notice, such a notice may irreversibly damage an applicant’s employment.  This may result in similar circumstances to those discussed in Wright, indicating a potential breach of ss 13 and 24 of the Charter.

Similarly, applying the reasoning in Wright, the Sex Offenders Registration Act 2004 (Vic) (SOR Act’) may also breach ss 13 and 24 of the Charter.  The SOR Act imposes strict reporting and monitoring obligations on persons found guilty of certain sex offences and prevents those persons from working in child-related employment.  Under the SOR Act, sex offenders are automatically listed on the registry following conviction of a relevant offence.  So, for example, a 19 year old who is found guilty of the statutory rape of a 15 year old will be automatically listed on the sex offenders’ registry for a minimum period of 15 years, without any possibility of review.  The lack of judicial discretion and the failure to give the offender an opportunity to be heard in this process may be considered a breach of the right to a fair hearing and the right to privacy and reputation. 

The decision is available at http://www.bailii.org/uk/cases/UKHL/2009/3.html.

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

Right to Liberty and Judicial Review of Lawfulness of Detention

Black v Secretary of State for Justice [2009] UKHL 1 (21 January 2009)

The House of Lords has held that the Justice Secretary’s power to determine whether certain long-term prisoners should be released on parole does not constitute a breach of art 5 of the European Convention on Human Rights, which requires the lawfulness of detention to be determined by a court.

Facts

Black, the respondent, was a repeat offender. He was ultimately sentenced to a total of 24 years imprisonment for a number of offences.  He became eligible for parole after ten years, and the UK Parole Board recommended that parole be granted.  However after reviewing the case, the Justice Secretary exercised his power under s 35(1) of the Criminal Justice Act 1991 to ignore the Board’s recommendation and refused to grant parole.  Section 35(1) gave the Justice Secretary this discretion only in limited circumstances – the prisoner had to be serving 15 years or more for an offence committed prior to 4 April 2005 and had to have a parole eligibility date falling before 9 June 2008, or the prisoner had to have been sentenced for certain sexual or violent offences.

Black challenged the Justice Secretary’s decision in the High Court and lost.  On appeal, the Court of Appeal declared that s 35(1) of the Criminal Justice Act 1991 was inconsistent with the right of a detained person to have the lawfulness of that detention determined by ‘a court’ under art 5(4) of the ECHR.  However, as the Justice Secretary’s decision had been made in accordance with UK law, the Court was not able to quash the decision and instead issued a declaration of incompatibility under the Human Rights Act 1998 in respect of the provision under which it had been made.  The Justice Secretary appealed to the House of Lords.

Decision

A 4:1 majority of the House of Lords granted the Justice Secretary’s appeal, holding that his power to ignore the Parole Board’s recommendation does not violate art 5 of the ECHR.

Lord Brown (with whom Baroness Hale and Lords Carswell and Rodger agreed) delivered the leading judgment.  His Lordship found that there is ‘nothing intrinsically objectionable (certainly in Convention terms) in allowing the executive, subject to judicial review, to take the parole decision’.  Indeed, a state could lawfully not involve an independent Parole Board at all in decisions about release on parole, leaving all such decisions to the executive, and still comply with the ECHR.

His Lordship emphasised that, in considering the compatibility of procedures for the release of prisoners under art 5, the European Court of Human Rights had found that art 5 only requires an independent judicial determination (including by the Parole Board) in respect of decisions about the release of prisoners who have been detained for a sentence with no definite term (colloquially referred to as ‘lifers’).  This is because, under UK law, an indeterminate sentence consists of two parts: a ‘tariff’ (which is the part of the sentence that must be served to represent the seriousness of the prisoner’s crime, and is set in open court at the time of sentencing) and the balance, the term of which will be set after trial and will largely depend on the prisoner’s threat to society following the tariff.  At both stages, a judicial, non-executive determination of the lawfulness of detention is required to comply with the ECHR, as a determination of whether the continued incarceration is lawful is required at both stages.

Conversely, where an individual has been imprisoned for a determined period (as in this case), decisions about whether parole should be granted do not touch the lawfulness of their continued detention per se; since the legality of their detention has been finally determined by the original conviction which set a maximum period for its duration. 

Because Black had a definite sentence, it was permissible for the Justice Secretary, as a member of the executive, to determine whether he should be granted parole, especially as this decision would be subject to judicial review.

Black submitted that there was no material distinction between the position of lifers at the end of their tariff period, and that of determinate sentence prisoners who have reached their parole eligibility date.  However, Lord Brown, rejected this argument as it would widen the application of art 5 beyond its intended scope, and art 5 cannot ‘apply merely because it would be useful’ or convenient for it to do so.

The dissenting opinion came from the Senior Law Lord, Lord Phillips, who was more sympathetic to the suggestion that the situation of lifers at the end of their tariff period and that of determinate sentence prisoners who have reached their parole eligibility dates were broadly similar, hence both warranted judicial involvement in the determination.

Relevance to the Victorian Charter

This case has only limited application to Victoria, as all decisions relating to granting parole are undertaken by an independent parole board, with no room for the executive to overrule their determination.  Accordingly, the point at issue in Black does not arise.

Further, pursuant to the Charter of Human Rights and Responsibilities (Public Authorities) Interim Regulations 2008, the Victorian Parole Board has been exempted from complying with the obligations to act in a way that is compatible with human rights and give proper consideration to human rights imposed on other public authorities under the Charter of Human Rights and Responsibilities Act 2006.  Hence in reaching its decisions, the Victorian Parole Board is presently not obliged to adhere to human rights principles.

The decision is available at http://www.bailii.org/uk/cases/UKHL/2009/1.html.

Ryan Hallett and Ben Kiely, Human Rights Law Group, Mallesons Stephen Jaques

Police Powers, Crowd Control and the Right to Liberty and Protest

Austin & Anor v Commissioner of Police of the Metropolis [2009] UKHL 5 (28 January 2009)

In this case, the House of Lords dismissed an appeal by a woman claiming that her right to liberty was breached as a result of police crowd control measures in central London.

The case represents the first time that European courts have examined the relationship between crowd control measures and potential rights infringements.  Specifically, the judgement provides that where measures of crowd control are implemented for the purpose of preserving community safety, are in good faith, proportionate and enforced for no longer than necessary, they will not constitute a violation of the right to liberty under art 5(1) of the European Convention on Human Rights.  More generally, the case supports a pragmatic approach to the question of rights violations, which takes full account of the particular circumstances even when dealing with fundamental or absolute rights.

Facts

On 1 May 2001 (May Day), the appellant joined a crowd of demonstrators in central London to protest against capitalism, globalisation and third world poverty.  Similar protests had been held in previous years and had resulted in public disorder and some violence.  Fearing a repeat incident, city police set up a cordon restricting the movement of the 3000-person crowd that had gathered to protest.  Police informed the crowd that they were being cordoned off to prevent a breach of the peace and that they would be released as soon as practicable.  In the end the crowd was confined for a period of 7 hours.

In 2002, the appellant brought proceedings against police arguing that as a result of the confinement her right to liberty under art 5(1) of the Convention had been breached.  The trial judge held that although the effect of the police cordon constituted a deprivation of liberty under the meaning of art 5(1) the containment was justified as it was accepted that police reasonably believed that the demonstrators were likely to engage in some form of unlawful activity.  This belief was based on provocative materials that demonstration organisers had distributed prior to the protest.

The woman appealed to the House of Lords.

Decision

Art 5(1) of the Convention begins by stating that everyone has ‘the right to liberty and security of person.’ It goes on to provide that no person shall be deprived of their liberty subject to six exceptions which include the lawful arrest or detention of a person where the detention proves necessary to prevent the commission of an offence (article 5(1)(c)).

In his leading judgement, Lord Hope of Craighead, noted that the list of exceptions in art 5(1) is ‘exhaustive and to be narrowly interpreted.’  Rather than determining whether the conduct of police in this instance constituted a lawful exception, the Court raised a more fundamental question of whether these circumstances in fact triggered the protection offered by art 5.  While it was accepted that the appellant’s movement had been restricted, the question was whether this also constituted an unlawful deprivation of liberty.

Relevant case law provides that the purpose of art 5(1) is to prevent ‘arbitrary or unjustified deprivations of liberty.’  Mindful of the purpose and absolutist nature of the right, Lord Hope adopted a pragmatic approach taking into account a range of factors including the nature, duration, effect and manner of the detention.  In his reasoning his Lordship referred to three key factors that must be met if the detention is to be deemed lawful.  Firstly, the measures of confinement must be taken in good faith.  Secondly, they must be proportionate to the situation that has made the measures necessary, and finally, they must not be arbitrary.  Where these criteria are met it is unlikely that an individual whose ‘liberty’ is restricted by crowd control measures will be able to successfully claim an infringement of art 5.

In determining whether the measures in this instance were proportionate and necessary some concern was expressed over the length of the confinement.  Demonstrators were restricted by the police cordon for 7 hours and endured some discomfort.  However, taking other factors into account including the threat of public unrest it was held that the mere fact that the period of constraint was unusually long was insufficient to invoke art 5.

Relevance to the Victorian Charter

The rights to liberty and security of person are contained in s 21 of the Charter.  Application to the Charter would suggest that in similar circumstances crowd control measures will fall outside the application of s 21 if they are resorted to in good faith, are proportionate and are enforced for no longer than is reasonably necessary.

It could be argued that the situation in which the appellant found herself may amount to a breach of s 12 of the Charter which provides that a person has the right to move freely.  However, it is important to note that this case does not examine the scope or substance of that right other than to affirm that the restriction of movement will not necessarily amount to a deprivation of liberty.

More broadly, the case favours a pragmatic and common sense approach in examining situations where breaches of fundamental rights are alleged.  The judgment suggests that such an approach is necessary to preserve the integrity and purpose of the right.  The case also illustrates the delicate balancing act that a Court must engage in where sets of rights compete.  In this instance an individual’s right to liberty was weighed against the right of the individual and community to be free from violence.

The decision is available at http://www.bailii.org/uk/cases/UKHL/2009/5.html.

Kristen Hilton is Executive Director of the Public Interest Law Clearing House (Vic)

Protest and the Right to Freedom of Expression and Peaceful Assembly

Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23 (05 February 2009)

The England and Wales Court of Appeal has held that bylaws which prohibited camping in the vicinity of the Atomic Weapons Establishment at Aldermaston (‘the AWE’) were an unlawful interference with the right of the appellant, a member of the Aldermaston Women’s Peace Camp (‘the AWPC’), to freedom of expression and freedom of peaceful association under the European Convention on Human Rights.

Facts

For 23 years, the members of the AWPC had camped once a month on land occupied by the AWE to protest against nuclear weapons.  Their protest had always been entirely peaceful. 

Section 14(1) of the Military Lands Act 1992 (the MLA) permitted the Secretary of State to make bylaws in relation to the use of its land where it had been appropriated for a military purpose.  Where the appropriated land was not being used for a military purpose, s 14(2) of the MLA provided that the bylaws could permit public access to the land and provide for the ‘government of the land… and the preservation of order and good conduct… and for the prevention of nuisances, obstructions, encampments, and encroachments thereon’.  Paragraph 6 of the 2007 AWE bylaws allowed the public to access certain ‘Controlled Areas’ on the land for ‘any lawful purpose’.  Paragraph 7(2) of the bylaws listed twenty prohibited acts in relation to the land, including s 7(2)(f), a prohibition on camping ‘in tents, caravans, trees or otherwise’. 

The prohibition on camping on the AWE had existed since 1986.  Contravention of the provision was a criminal offence, but it had not been enforced over the years because there had been some doubt about whether the AWPC was on land belonging to the Secretary of State, and because of an ‘apprehension’ about the impact of the Human Rights Act 1998.

The Divisional Court held that there was no violation of the freedoms of association and expression, since s 7(2)(f) only impacted on one form of association and expression.  The issue on appeal was whether the camping prohibition was justified by the any of the considerations in art 10(2) of the European Convention, which provided that the right to freedom of expression ‘may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society’, for example, ‘in the interests of national security’.  The Court of Appeal did not focus on the freedom of association claim, noting that it was not an autonomous claim, but rather underlined the mode of free expression relied upon.

Decision

Laws LJ (with whom Stanley Burnton LJ and Wall LJ agreed) held that s 7(2)(f) did constitute an unlawful interference with the appellant’s rights under arts 10 and 11 of the Convention.

In deciding whether the interference with the appellant’s right was justified, Laws LJ considered whether paragraph 7(2)(f) of the bylaws served the achievement of a legitimate aim and if so, whether it constituted a proportionate means of doing so. This could only be satisfied if the interference was required to fulfill a ‘pressing social need’. 

The State had argued that the prohibition on camping was justified on the grounds of national security, public safety, the prevention of disorder or crime, and the protection of the rights of others.  Camping in the vicinity of the security fence would require additional surveillance and could be used as a cover or distraction in relation to terrorist activities.  Camping in close proximity to high volume traffic was a distraction to motorists, and there were no publicly accessible sanitation facilities in the Controlled Areas.

Laws LJ emphasized that the justification advanced by the State could not be looked at in isolation.  Whether s 7(2)(f) imposed no more than a ‘proportionate restriction’ of AWPC’s free expression depended on the nature and quality of the right’s exercise.  Laws LJ placed little weight on the Secretary of State’s argument that the public’s right to enter the land was found in the bylaws themselves.  The court was not persuaded by the argument that s 7(2)(f) only interfered with the ‘manner and form’ of the appellant’s freedom of expression, and not with the ‘essence’ of that right.  Neither did it accept the State’s argument that where the interference with freedom of expression is in the ‘manner and form’ territory, the court should be readier to allow the state a ‘generous margin of appreciation to take restrictive measures for practical or prudential reasons.

Laws LJ said that the distinction recognized in the Strasbourg jurisprudence between the ‘essence’ and the ‘manner and form’ of a protest has to be treated with ‘considerable care’.  In this instance, the argument that the camp was merely the mode and not the essence of the protest carried little weight.  The AWPC was not merely the setting or context for the protest, but an inherent part of the protest itself.  The ‘manner and form’ of the protest had ‘acquired a symbolic force inseparable from the protestors’ message’.  For the participants in the peace camp, and their supporters, ‘the “manner and form” is the protest itself’.

Laws LJ held that the justifications advanced by the state were insubstantial.  No steps had been taken in 23 years to put a stop to the camp.  If the State had such substantial objections to the presence of the camp, it could have taken the necessary steps to deal with it.  The points about the security fence, traffic problems, and sanitation facilities were said to be ‘nuisance points’.

Relevance to the Victorian Charter

It remains to be seen whether a similar decision would be made under the Victorian Charter, in which the freedoms of expression and political association are contained in ss 15 and 16.  In particular, it is unclear whether a Victorian court would be persuaded by the argument that the distinction between manner and form and the essence of the right could not be upheld, since the mode of expression – the peace camp – went to the very essence of the expression.

Like art 10 of the European Convention, s 15(3) of the Victorian Charter contains an internal limit to the right to freedom of expression, providing that it may be subject to lawful restrictions ‘reasonably necessary’ for the protection of other interests, such as national security, public order and public health.  In addition, however, s 7(2) of the Charter introduces a non-exhaustive list of factors which must be taken into account when determining whether a limitation on any right under the charter can be ‘demonstrably justified in a free and democratic society’.  This includes the nature of the right and the limitation, the importance of the purpose of the limitation, the relationship between the limitation and its purpose and any less restrictive means available to achieving that purpose.  While there is clearly overlap between the internal limit in s 15(3) and the general limitations provision in s 7, s 15(3) can be understood to identify particular considerations which are relevant to the test outlined in s 7.  The requirements in both sections must be satisfied.  Overall, it can be said that the same kinds of considerations which persuaded Laws LJ that the camping prohibition was not a proportionate restriction would also be considered in the framework established by ss 7, 15 and 16 of the Victorian Charter.

The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2009/23.html. 

Rosannah Healy is an Articled Clerk with Allens Arthur Robinson

Right to a Fair Hearing, Statutory Interpretation and Limitation Periods

Andrew Casey v Richard Luke Alcock [2009] ACTCA 1 (23 January 2009)

The ACT Court of Appeal has indicated that the UK’s Ghaidan approach to legislative construction – which allows a court to depart from the unambiguous meaning of the legislation where necessary to give effect to a designated purpose – does not necessarily apply under the Legislation Act 2001 (ACT) or Human Rights Act 2004 (ACT) (‘HR Act (ACT)’).

Facts

Alcock was injured in a motor vehicle accident and lodged a claim with the driver’s insurer.  Under s 61 of the Civil Law (Wrongs) Act 2002 (ACT) the insurer was obliged to provide written notice stating whether it admitted or denied liability.  The insurer admitted that its client had breached his duty of care.  Alcock commenced proceedings approximately three and a half years after the accident, outside the statutory limitation period.  However, s 32 of the Limitation Act 1985 (ACT) provides that if, during the limitation period, a person against whom a cause of action lies confirms the existence of the cause of action, then the time before receiving that confirmation does not count in the reckoning of the limitation period. 

The trial judge found that the insurer’s letter constituted a confirmation of Alcock’s cause of action and thus the limitation period did not begin to run until the respondent received the letter.  Consequently, the proceedings were initiated within time. 

On appeal, the insurer argued that its admission of liability was not a confirmation for the purposes of s 32 of the Limitation Act 1985 (ACT), as the consequent restarting of the limitation period was contrary to the purpose of the Civil Law (Wrongs) Act 2002.  In support of this argument, the insurer asserted that s 139 of the Legislation Act 2001 (ACT) was analogous to s 3 of the Human Rights Act 1998 (UK) (‘HR Act (UK)’), in that both required a court to ‘prefer’ one meaning to another.  In the case of the Legislation Act, a meaning ‘that would best achieve the purpose of the Act’ is to be preferred, while s 3 of the HR Act (UK) obliges courts to prefer an interpretation that is consistent with the European Convention on Human Rights. 

In respect of the HR Act (UK), the House of Lords has found that courts are allowed to depart from the unambiguous meaning the legislation would otherwise bear to give effect to that designated purpose: Ghaidan v Godin-Mendoza [2004] 2 AC 557.  Accordingly, if the Ghaidan principle applied, the Court would be required to overlook the unambiguous language of s 32 and instead construe the section in a way which the insurer submitted would better give effect to the intention of the Act.

Decision

The Court of Appeal unanimously dismissed the appeal, holding that s 32 of the Limitation Act 1985 (ACT) required the reckoning of the limitation period to be restarted, so that the action was commenced within time, and that there was no power or obligation under ACT law to disregard the unambiguous wording of the provision. 

Besanko and Refshauge JJ both rejected the approach in Ghaidan on the basis that, unlike section 3 of the HR Act (UK), s 139 of the Legislation Act 2001 (ACT) explicitly retains the purpose of the legislation in question as the determining factor in statutory interpretation.  Similarly, the obligation to interpret legislation consistently with human rights under s 30 of the HR Act (ACT) is expressly subject to the purpose of the relevant legislative provision.  Thus, in the ACT, the purpose of legislation takes primacy over its human rights implications in statutory interpretation.

Refshauge J noted that the insurer relied on a previous decision of the ACT Court of Appeal, in which the Court had stated, in obiter, that s 139 of the Legislation Act ‘seem[ed to be] in similar form to the interpretive provision in the HR Act (UK)’: Kingsley’s Chicken Pty Ltd v Queensland Investment Corp [2006] ACTCA 9 at [49]-[52].  His Honour held that the Court of Appeal was not suggesting that s 139(1) of the Legislation Act authorised or required a court to take the type of approach adopted by the House of Lords in Ghaidan, but that if it did, he would decline to follow its observations in any event.

His Honour went beyond finding that the Legislation Act did not require a Ghaidan style analysis, and observed that:

Nor, in my respectful opinion, is it correct to say that, in a case in which a human right was in issue, s 30(1) of the Human Rights Act authorised and required a Court to take the type of approach taken by the House of Lords in Ghaidan: at [108].

Section 30 of the HR Act (ACT)has always been subject to a requirement that a Court adopt an interpretation which is consistent with the purpose of the legislative provision.  Conversely, the primary constraint under s 3(1) of the HR Act (UK) is stated in terms of what is or is not possible, not what is intended by the provision, and hence can provide a court with the ability to go beyond unambiguous wording.

Relevance to the Victorian Charter

Like s 30 of the HR Act (ACT), and unlike s 3 of the HR Act (UK), the obligation to interpret legislation consistently with human rights in s 32(1) of the Victorian Charter is expressly subject to the purpose of the legislation. 

Refshauge J’s observations regarding the application of Ghaidan to the HR Act (ACT)were obiter and thus not binding.  It remains to be seen how far Victorian courts will go to give effect to the operation of s 32(1) as the primary remedial provision under the Victorian Charter.

The decision is available at http://www.courts.act.gov.au/supreme/judgmentsca/casey.htm.

Charlotte Lau, Human Rights Law Group, Mallesons Stephen Jaques

HRLRC Policy Work

Prisoners’ Rights: Submission to Review of Draft Corrections Regulations 2009 (Vic)

The HRLRC has made a submission in response to a Corrections Regulations Exposure Draft 2009 (Vic) that was recently released by Corrections Victoria.  The current Corrections Regulations 1998 are due to sunset in May 2009.  The Proposed Regulations, together with a Regulatory Impact Statement, were released for public comment on 22 January 2009. 

The submission addresses aspects of the Proposed Regulations that the HRLRC considers do not comply with established international and comparative jurisprudence relating to the treatment of prisoners.  In particular, the submission highlights the following concerns with the proposed regulations:

• the regulations concerning the use of firearms permit an escort officer to shoot and kill an escaping officer, regardless of the threat that the prisoner poses;
• the provisions authorising the use of instruments of restraint provide prison staff with an overly broad discretion;
• the provisions relating to classification of prisoners inappropriately identify ‘risk’ to be the single overarching consideration in making such decisions;
• the placement of prisoners does not give sufficient consideration to the need for prisoners to maintain connections with family and friends;
• there is insufficient clarity and transparency around the process for separation of prisoners;
• the provisions relating to prison discipline must be consistent with the right to a fair hearing, particularly in relation to the prescription of offences and penalties and ensuring the right to an effective remedy;
• there may be an unjustified and arbitrary interference with access to prisoners, particularly in relation to visits by lawyers and family members and the register of letters and parcels; and
• provisions relating to searching, and in particular strip searching, remain unacceptably arbitrary and do not require any reasonable belief or suspicion that the security or safety of the prison will be compromised.

The HRLRC was provided with substantial assistance by Clayton Utz in the research and preparation of the submission.

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

HRLRC Casework

Indigenous Rights: Centre Submits Request for Urgent Action on NT Intervention to UN Committee on the Elimination of Racial Discrimination

The Centre is acting for a group of 20 Indigenous Australians affected by the Northern Territory Intervention – introduced by the Howard Government and continued by the Rudd Government – who have submitted a Request for Urgent Action to the United Nations saying that Australia is in breach of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.

The group of Alice Springs town camp and remote community residents is extremely concerned about the continuing serious and pervasive effects that the Northern Territory Intervention measures are having on Indigenous communities and, in particular, their traditional way of life.  The submission requests that the UN Committee on the Elimination of Racial Discrimination take urgent action by calling on the Australian Government to take immediate steps to reinstate the operation of the Racial Discrimination Act and to enter into significant and meaningful discussions with affected communities and individuals. 

The group of Northern Territory residents are being assisted by a legal team including former Federal Court judge Ron Merkel QC and human rights lawyer George Newhouse, with substantial assistance from the Human Rights Law Resource Centre.

This Request for Urgent Action concerns the discriminatory aspects of the Northern Territory Intervention that necessitated the exclusion of the Racial Discrimination Act. 

The Northern Territory Intervention legislation adopted the device of declaring that the legislative provisions are ‘special measures’ for the purposes of the Racial Discrimination Act (and therefore the ICERD).  This legislative declaration is non-justiciable and is internally inconsistent because, if the provisions were special measures, there would be no need to exclude the operation of the Racial Discrimination Act.

The Australian Human Rights Commission has described the Northern Territory Intervention measures as ‘punitive and racist’ and, following a comprehensive analysis of the Intervention, found that the ‘racially based legislation’ contravenes a number of international human rights conventions and the Racial Discrimination Act. 

In addition to its discriminatory nature, the Northern Territory Intervention legislation was passed without any consultation with Aboriginal representatives or affected communities.  This is particularly worrying as the Northern Territory Intervention measures were introduced and continue at a time when there is no representative body for Aboriginal people in Australia.

The Request for Urgent Action is available at www.hrlrc.org.au. 

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

Seminars and Events

‘Human Rights, National Interest and Foreign Policy: Taking Back the Initiative’
with Carroll Bogert, Associate Director of Human Rights Watch

Date:      5.45 for 6.00pm, Monday, 2 March 2009

Venue:   Blake Dawson, Level 26, 181 William Street, Melbourne

Cost:      $25 / $15 concession

RSVP:    By 23 February 2009 using Booking Form at www.hrlrc.org.au under ‘Seminars and Events’

Carroll Bogert is the Associate Director of Human Rights Watch.  Human Rights Watch is one of the world’s leading human rights research and advocacy organizations.  Carroll is a human rights expert with particular expertise on Russia and China.  She previously worked as a journalist, including as an Editor of Newsweek and as a correspondent and bureau chief in Moscow and South East Asia.  She frequently publishes human rights op-ed pieces in papers including The New York Times, The Washington Post, the Financial Times and USA Today.

Asylum Seekers Resource Centre Fundraiser
Special Screening of A Well Founded Fear
with Kon Karapanagiotidis, CEO of Asylum Seekers Resource Centre and Prof James Hathaway, Dean of Melbourne Law School

The LIV is pleased to present a special screening of A Well Founded Fear.  The Film Fundraising Night is designed to raise awareness about deportation of asylum seekers and their stories after leaving Australia and to discuss Australia’s international refugee and asylum seeker obligations. 

Following the screening of the film, Kon Karapanagiotidis, CEO of the Asylum Seekers Resource Centre will lead an interview style discussion with leading authority on International Refugee Law, Professor James C Hathaway, Dean of Melbourne Law School.  

Date:      5.30 – 7.30pm, Wednesday, 11 March 2009

Venue:   LIV Lecture Theatre, 470 Bourke Street, Melbourne

Cost:      $ 15 (Young Lawyer Members); $ 20 (LIV Members); $ 30 (Non-Members)

Cost includes light refreshments.  Proceeds from this event will be donated to the ASRC. 

For more information and registration go to http://www.liv.asn.au/events/calendar/20090311_Fundraiser.html

Everyday People, Everyday Rights: Human Rights Conference

Date:      16 and 17 March 2009

Venue:   The Melbourne Park Function Centre, Batman Avenue, Melbourne

Register now for the Victorian Equal Opportunity & Human Rights Commission’s 2009 Human Rights Conference.  This two-day event presents an exciting opportunity to hear from respected human rights advocates; engage in lively panel discussions; and be part of the latest discussion on protecting human rights.

Be part of the debate and discussion about:

• The achievement of human rights: A review of the Victorian Charter of Human Rights & Responsibilities and what it has achieved considering Victoria’s current state of affairs.
• The experience of human rights: Sharing the knowledge and insight of everyday people and their advocates. How do we progress a human rights culture?
• The business of human rights: Practical examples of how incorporating human rights gives companies the competitive edge. An opportunity to showcase the big wins for both business and community when human rights are considered.

Speakers include Julian Burnside QC, Rosslyn Noonan (Chief Commissioner, New Zealand Human Rights Commission), Andrew Hewett (Executive Director, Oxfam Australia) and Graeme Innes (Human Rights Commissioner and Disability Discrimination Commissioner, Australian Human Rights Commission).  For a program and to register, see http://www.humanrightsconference.com.au. 

Human Rights Resources

Book Review: Bills of Rights in Australia: History, Politics and Law
by Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon (UNSW Press, 2008)

In the midst of the excitement surrounding the current National Human Rights Consultation, some might suppose that the idea of a charter or bill of rights is relatively new to Australia.  To the contrary, as Bills of Rights in Australia reveals, the concept was deliberated and discussed even during the Federation debates of the 1890s.  Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon’s text provides a political, historical and legal analysis of the development of bills of rights throughout Australia’s relatively short life; providing a vital contextual insight for all those interested in the current Consultation.  

The first chapters of the text provide important background on the development of human rights cultures.  Chapter 1 discusses the nature of human rights, outlines theories underpinning the growing importance of human rights, and explains how human rights are currently protected in Australia and around the world.  Chapter 2 charts the history of the idea of a bill of rights in Australian politics; from the Federation debates, to the Labor Party’s aspirational but ultimately unsuccessful Human Rights Bill in 1973, to the 1988 referendum on constitutional amendments to guarantee certain civil and political rights. 

Helpfully for the current Consultation, Chapter 3 outlines the variety of different models embodied by bills of rights around the world, and discusses themes and controversies arising from the debates around the world, and particularly in Australia.  Chapters 4 and 5 then discuss in depth the history, development and operation of the ACT Human Rights Act 2004 and the Victorian Charter of Human Rights and Responsibilities Act 2006. 

Perhaps most relevant for those engaged with the current Consultation, Chapter 6 (‘Towards an Australian bill of rights’) analyses how the political mood for change developed throughout Australia.  It discusses the key elements of a national bill of rights, including jurisdictional scope, the choice and formulation of rights, and mechanisms for rights protection (such as compatibility and scrutiny for new legislation, interpretive obligations, declarations of incompatibility for existing legislation and remedies). 

The text concludes by discussing what difference a national bill of rights would make in Australia, stating that a bill of rights would be ‘useful in challenging the rigid application of policies in ways that ignore the realities of human lives’.  This comment echoes those made upon the retirement of former High Court judge Michael Kirby this week, who was known to view the law through a ‘prism of real-life circumstances rather than rigidly re-cast from legal statutes’.  Here’s hoping all Australians are able to experience first-hand, rather than simply read about, how beneficial a national charter of rights will be. 

Jessica Zikman is on secondment to the Human Rights Law Resource Centre from Lander & Rogers

If I were Attorney General…

A Vision for Human Rights

I am the Attorney-General for the Australian Capital Territory.  As the Territory is so small, I also hold four other Ministerial positions, including Minister for Health, Minister for Women, Minister for the Arts and Minister for Disability and Housing.  This multi-tasking gives me such insight into the interconnectedness of social justice issues that I become a powerful advocate for economic, social and cultural rights. 

By clever liaison with the ACT Greens who hold four seats and the balance of power in the ACT Legislative Assembly, I manage to fast-track the inclusion of economic, social and cultural rights into the Human Rights Act 2004 (ACT), blending the South African and Northern Ireland models to make legal history.  The Canberra Times and BBC World compete to run feature story after feature story about the innovative ESCR policy initiatives in Canberra, focused on domestic violence and housing rights, achieving equal pay for women, addressing homelessness as a human right, guaranteeing full access to quality health care, offering fantastic early childhood education to every child, promoting the dignity of those with mental illnesses, running a fully human-rights compliant detention facility and promoting the rights of people with disabilities.

Indigenous governance, health and education initiatives are an early priority, with Indigenous solutions given the budget and resources they need to be realised over a ten-year time-fame, led by the new Indigenous member of the Legislative Assembly (Canberra residents Mick Dodson and Sir William Deane often help out as special advisers). 

I also plough large injections of energy and cash into the cultural life of Canberra.  Very soon, Cate Blanchett and Andrew Upton abandon the Sydney Theatre Company to co-found the Canberra Theatre Company, which also houses the beautiful new Indigenous Arts Centre.  The NTC specializes in free human rights theatre productions twice a week, which are so entertaining that ABC TV and Radio broadcasts them nationally.  The TV version out-rates even ‘So You Think You Can Dance’.  People from Melbourne start to visit for the weekend.

I triple the budget and resources of the ACT Human Rights Commission and the internal government machinery.  I give all Canberra-based social justice advocates a big core-funding grant, tax exempt status, a big office with shared secretariat services, and a two-hour scheduled meeting with me once a week (plus free day spa vouchers so they can finally learn to relax a little).  Part of this new grant money is to fund an innovative public communication campaign (‘Human Rights Rock!’, led by Powderfinger), so that Canberrans start to understand the Act more and learn ways to use it in their dealings with government and public authorities.

All ACT politicians, senior bureaucrats, judicial officers and the AFP are sent off to intensive human rights camp for a month supervised by Professor Hilary Charlesworth.  ANU College of Law has to double its size to cope with all the students who want to enrol in human rights law and devote their professional lives to social justice instead of joining a big firm. 

Within the year, so many people from Queanbeyan NSW move across the border to Canberra to reap the benefits of being governed under a human rights culture, that the bell-weather Federal seat of Eden-Monaro has to be redistributed.

On a wave of popular support, I am elected to this new Federal seat of Deane-Dodson and enter the Commonwealth Parliament.  President Gillard immediately sees my potential and promotes me to the post of Attorney-General.  All Federal Parliamentarians, senior bureaucrats, High Court judges and the rest of the AFP are sent off to intensive human rights camp for a month, again supervised by Professor Hilary Charlesworth.  There is also a special year-long camp for the intelligence agencies and the Department of Immigration.

I pull refugee policy into my Department, and again triple the budgets of the Human Rights section and the Office of International Law within the Department, as well as the Australian Human Rights Commission and the Australian Law Reform Commission.  There is a new Parliamentary Secretary for Human Rights appointed to assist me, and her first job is to reform the Cabinet Submission process and legislative scrutiny so that any new initiative is scrutinised for compatibility with human rights, under the Human Rights Act 2009 (Cth).  No Bill can come before Cabinet before the Deputy Secretary for Human Rights in my Department has cleared it.  Then of course, there is the rigorous process of scrutiny undertaken by the new Joint Standing Committee on Human Rights in Parliament, which I sit on when I can.  The Committee has all the powers of a Royal Commission.

This time I give all members of the Attorney-General Human Rights NGO Forum a huge core-funding grant, tax exempt status, offices in Barton with secretariat services (sadly I have to kick out all the pharmaceutical lobbyists and military contractors from their offices to achieve this), and offer scheduled meetings with me once a week.  Everyone who wins the Human Rights Medal gets a statue and a suburb named after them.  The statues go in front of the new Australian Human Rights Centre, which sits right next to the War Memorial and gets equal funding.

Luckily I win four consecutive terms and can implement all the fine policies started in the ACT at the national level.  I never worry about the sustainability of this legacy because of all the young human rights advocates coming through who want to be involved in public life for the promotion of human rights, and so retire happy to dabble in community theatre. 

Dr Susan Harris Rimmer is President of Australian Lawyers for Human Rights and a researcher at RegNet, ANU

Found in HRLRC E-Bulletin, Past Issues, Publications & Resources