ACT Human Rights Office ACT Human Rights and Discrimination

Commissioner: Dr Helen Watchirs

The ACT Human Rights 2004: Lessons & Experiences -

18 months of operation

Castan Centre for Human Rights

2 December 2005

Development of ACT HR Act

• Preamble: ‘live lives of dignity and value’• ACT 2002 Bill of Rights Consultative Committee

- Report 2003 (NZ & UK models)• Australian Constitution and common law not fully

implement international HR obligations: respect, protect, fulfil, & promote

• Protects civil & political rights (ICCPR)

Key features of ACT HR Act • HR Act ordinary, not constitutionally entrenched• Interpretative model – s.30 ‘in working out the

meaning of a Territory Law, an interpretation that is consistent with human right is as far as possible to be preferred’

• No direct application to agencies• No direct access to courts • International law relevant (s.31)• Need to clarify some rights absolute

Roles of democratic institutions

• Respects constitutional & democratic boundaries – courts, parliaments, & the executive

• Supreme Court can issue Declarations of Incompatibility – table parliament & govt must respond

• Parliament has last say about amending laws• Only applies to ACT not Federal laws• Act applies across whole ACT legal system

Human Rights Commissioner

• review & report on effect of laws to Attorney-General, eg Audit of Juvenile Detention Centre – Children & YP Act 1999

• advise Attorney-General laws - emergency ECT• power to seek leave to intervene in courts• Supreme Court notifies HRC & A-G - consider issuing a

declaration of incompatibility• community education - training, newsletter, art awards,

interns • biannual Community Forum - 10 December 2004

(International HR Day) & 1 July 2005 (Act commenced)• strategic focus redress most vulnerable

Proposed lawAttorney General prepares a Compatibility Statement about whether the proposed law is consistent with human rights (s.37)

The proposed law is also scrutinised by LA Standing Committee on Legal Affairs

Human Rights issues raised by the proposed law are reported to the Legislative Assembly

Legislation is passed with due consideration to Human Rights, including proportionality test - reasonable in a free and democratic society (s.28)

Laws must, so far as possible, be interpreted with consideration of human rights (s.30)

Interpretation consistent with Human Rights isn’t possible

Restrictions on rights in legislation stands

Supreme Court may issue a Declaration of Incompatibility which must be tabled before the Legislative of Assembly (s.32)

Civil & Political Rights (ICCPR)

• Life• Recognition & equality before

law & non-discrimination• Torture, cruel, inhuman or

degrading treatment• Family & children• Privacy• Freedom of movement• Freedom of thought,

conscience, religion & belief • Freedom of expression

• Rights of minorities• Association & assembly• Take part in public life• Liberty & security• Humane treatment in detention• Criminal process rights• Fair trial• Freedom from force work• No double jeopardy or

retrospective criminal laws• Compensation for wrongful

conviction

Balancing rights - proportionality test

s.28 ‘Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society’.

1. the limitation adopted achieves the objective in question, eg prevent terrorism;

2. the means, even if rationally connected to the objective, should impair as little as possible the right or freedom in question, eg right to fair trial; and

3. there must be a proportionality between the effects of the limitation & the objective. The more severe the effects of a limit, the more important the objective must be if the limit is to be reasonable & demonstrably justified – eg criminal offence for breach of civil control order, or disclose preventive detention. 

Emergency ECT

• Draft Bill: public exposure draft & amended• Only proportionate when saving life• Same safeguards as ordinary ECT: s.26, ie best

interests, wishes of consumer, attempt other treatments, records, notify OCA, cap numbers

• Second psychiatrist + full Tribunal • Children: no legal precedents. Age consent usually

16 (evolving capacity CRC)

Juvenile Detention Centre

• Quamby Human Rights audit• loss of liberty, not all human rights, eg dignity • Classification segregation of accused/convicted,

adults/children • Behavioural Management Regime – unlawful mix

discipline & remission of sentence• inhuman & degrading treatment isolate, lockdown• privacy – routine strip search, surveillance, visits,

telephones, correspondence, legal & media access

Impact – government & community

• S.38 LA Standing Committee Terms of Reference• S.37 all government Bills required to have A-G’s

Compatibility Statement• Cabinet Submission box (eg environment, women)• DJACS website: Scrutiny Guidelines, Plain English Guide, • Australian Research Council Linkage (ANU)• Annual report measures: respect, protect, promote• Departments consultant audits Health & Education • National Judicial College training - NZ• Law Society Special Issue of Journal Ethos

Agency Annual Reports

• Requirement to report on measures to respect, protect, promote

• ACT Audit Office – integrated: procedural fairness; Public Interest Disclosure; inclusive management; Cert. Agreement conditions of employment; Equity & Diversity Guidelines

• Performance Audit Report – Courts Administration 2005.

• Advice A-G delay – right to fair trial: BRC 20 detainees more than 100 days (worst 14 July 2003)

• UK HR Act central legislation governing agencies

Judicial Scrutiny 2004/05•R v YL•R v O’Neil •Firestone v ANU•Szuty v Smythe •Robertson v ACT •R v Martiniello •R v Trevitt •Fletcher v Harris •Buzzacott v the Queen •Le•R v Upton•Re Application for Adoption of TL•AAT Merritt & Commissioner for Housing

Controversies

• Criminal law: presumption innocence onus of proof – evidential vs legal/persuasive burden

• Fair trials: Prosecution delay, search & seizure powers, absolute/strict liability for offences, bail

• Preventive detention of sex offenders? (& register)• Prisoners right to vote in elections• Australian Federal Police exercise Commonwealth

powers - ACT HR Act? eg protestors Federal land• Mental health – UK 3 DOI, eg fitness discharge

involuntary patients onus on govt, not patient

Federal Anti-Terrorism Bill 2005

• Most informed public debate on HR

• Disproportionate impact Muslims

• Legal Profession unified - rule of law

• UK model: Preventative Detention & Control Orders

• Sunset 10 years, review 5 years

• Paradox: dual executive & legal system

• ACT draft law - HR compliant: full review

HR & Security

• Liberty, fair trial, family, association, communication, movement, privacy, religion

• Transparent process & community debate• HREOC President: Police State indicia exercise powers of

govt without effective judicial review• Medium National Counter-Terrorism Alert• Detention humane & no questioning (ASIO law)• National Security (Criminal & Civil Proceedings) Act

2005 • First arrest current cases Mirsad Mulahalovic: 12

November 2005 Sydney (SMH artist)

Preventative detention

• 2 (federal) + platform 14 days (States) • UK extended 14 to 28 days (no 90)• Broad grounds – reasonable suspicion will engage,

possess a thing that is connected with the preparation/planning for an imminent terrorist act

• Issued by AFP initially – continued by judges• Changes: disclosure to parents, shoot to kill• House Lord’s DOI 2004 Anti-terrorism Crime &

Security Act 2001• Senate Committee Recommendations

Control Orders

• 12 months & successive (3 months: 16-18yo)• stronger than DVOs & PPOs• Initial ex parte, but subject to full judicial review

(merits) – no time limit to lapse (UK 7 days)• Wide grounds – reasonable belief substantially assist

in preventing a terrorist act, & training TO• Reasons for order proportionate? • Limits: house arrest, electronic tagging, movement,

work, travel etc• Senate Committee Recommendations

Building Human Rights Culture

• Impact on govt & community, not just cts

• comprehensively integrate and mainstream in programs, policies & legislation

• challenge service delivery, not charity• specialist Public Forums: Corrections,

Mental Health & Victims of Crime • Asia Pacific region no HR regime

UK Experience• 1998 HR Act in force 2000 – 2 years lead time• Commission for Equalities & Human Rights Act

2005 in force 2006 • Specific benchmark in systemic work, eg prisons• UK Audit Commission (2003) 50% awareness• insufficient training of service providers• no community education program• Lord Carswell impact on judiciary and profession

Economic, Social & Cultural Rights

• Consultative Committee’s Recommendations ICESCR not implemented

• UK & European cases education• South Africa: Grootboom (2000) shelter• health - ‘reasonable measures’ Soobramooney v

Minister of Health (Kwazulu-Natal) (1997) & Minister for Health v Treatment Action Campaign (2002):

Review of Discrimination Act

• Strengthen racial vilification - ‘public act’ that ‘incites hatred towards, serious contempt for, or severe ridicule of a person or group’

• Freedom of speech – ICCPR specific obligation to prohibit racial and religious hatred

• New ground eg socio-economic status?

The Future?• HR Commission Act 2005: complaints &

systemic review health/aged, children/YP, disability, & community services Commissioners & President

• HR culture: partner community and govt

• 1/2 & 5 year HR Act review

• National Bill of Rights – Anti-terrorism Bill 2005 catalyst?

‘Beacon of hope’ Julian Burnside, QC