ACT Human Rights OfficeInstitutional Responses & the Role of the Human

Rights Commissioner

Dr Helen Watchirs

ACT Human Rights Act 2004: Australia’s First Bill of Rights, NSW Parliament House Theatrette, Sydney

29 October 2004

Introduction

1. Local Context of the Human Rights Act 2004

2. The Role of the ACT Human Rights Office

3. Impact of HR Act on government practice

4. Impact of HR Act on community

5. Expected court cases (UK & NZ experiences)

6. Case study - Impact of on ACT Corrections

7. National Context

8. Recent & Future Developments

Local Context of the Human Rights Act 2004

• Chief Minister’s commitment build HR culture: Canberra Social Plan (cf UK lack of public education – different to European rights culture)

• Focus on what Act does (not only what it doesn’t, eg Alternative Law Journal) to protect C&PR. 1990 NZ Act with 1998 UK mechanisms

• Responsibilities inherent: Private Member’s Bill Charter of Rts & Responsibilities rejected as oppressive (Fraser – international level)

• Criticisms: 1. lack of ESCR, 2.direct access to courts, & 3.application to agency acts & practices.

• New rule of statutory construction: interpret laws consistently with HR ‘as far as possible’ (not rewrite laws) – dialogue model difficult to explain to people without legal or paralegal background

• If decisions fail to consider HR Act, appeal points of law• Focus on Supreme Court’s Declarations of Incompatibility: booby prize

no one wins (just kick starts debate)• Constitutional boundaries – courts (interpret laws), parliaments (enact &

amend statutes), & the executive (administers & implements laws).• Resonance with popular culture: ‘fair go’ (HR pamphlet)

The Role of the ACT Human Rights Office

- Smallest HRO (7) indep office – mandate Discrimination & HR Act- community information & education (not agencies – DJACS role)- no power to investigate/conciliate HR complaint (cf discrimination)- review & report on effect of laws for HR compliance – table in

Legislative Assembly (subject to privacy & public interest amendments). Also proactive audits of existing laws, eg mental health

- advise the Chief Minister (also Attorney-General) eg Federal Anti-Terrorism Bill No.2 2004 – association offence)

- seek leave to intervene in court proceedings (SC notify: consider DOI)- assist individuals and organisations with HR inquiries: frustrated- comment on policy proposals & cabinet submissions (eg new gaol –

draft exposures of Bills) - HRC role immediate – big debate UK operational 2006 (White Paper

& BIHR ‘Something for Everyone; Impact of HRA & Need for HRC’)- Challenge Human Rights & Service Review Commission July 2005:

President & Commissioners (HREOC model) – HR, Discrimination, Privacy, Health Services, Community Services & Disability Services

Institutional impact of HR Act on government

• Operate under legislative mandate: HR interpret apply to practices (avoids UK definition problem ‘public authority’)

• All govt Bills required to have A-G’s Compatibility Statement – centralised pre-enactment scrutiny by DJACS like NZ (30+). UK decentralised Minister responsible for Bill: nil cases. Private Bills?

• Dialogue model: unicameral Legislative Assembly retains sovereignty (NZ minority govt – ACT majority first time in 15 yrs self-govt)

• UK 50% AD(JR) cases HR (immigration/asylum & mental health). Bowman reforms pre-action protocol to increase settlements & prevent ambushes – Public Law Project: cursory reference (tack on). Lawyers aware of HR Act but need targeted training to engage in jurisprudence. [Success rate: decision-makers yet to absorb & incorporate HR – UK Audit Commission report confirms]

• HR Act applies across all legal system: remedies available eg injunctive relief, tort damages, breach of statutory duties

• Departments’ acceptance uneven (sought independent legal advice) but agencies wish to avoid exposure to litigation (Inter-Dept Committee).

• Sleeper: Agency Annual Reports – respect, protect & promote HR

Impact of HR Act on community

• Advocacy tool/benchmark for NGO lobbying – law reform• Potential for HR Act cases between citizens – privacy (Naomi Campbell – new

C/L tort House of Lords). ACT HR Act n/a C/L• strengthen rule of law, not rule of lawyers. 2 ends spectrum of critics: litigious

(Bob Carr - entrenched Constitution US) v Clayton’s (NZ)• Media beatups eg Australian (1/7/04) Janet Albrechtson - prisoners access to

porn. Canberra Times Editor (26/1004) ‘no impact’• Slow start in 4 Supreme Court 2004 cases (Discrimination Tribunal appeal

case pending: IF v Comm’nr forHousing) : 1. Not coerce 7yo child to give evidence against stepmother under SC

Act discretn: R v YL - rts child (s.11) & DPP nolle prosequi/decline to proceed (s.21-22 fair trial, unreasonable delay) contingent on adverse findings, refile indictment2. double jeopardy (C/L): R v O’Neil3. Workplace Protection Order: Firestone v ANU4. Szuty v Smythe: defamation; & AAT housing case: Merritt & Commissioner for Housing.

Expected litigation (UK & NZ experiences)• International law relevant (s.31): UN treaty body Gen Comments &

cases/communications (Op Pro) ; UNGA Declarations/treaties; cts.

• Read down primary legislation to be consistent with right: Mendoza v Ghaidan (UK): ‘as his or husband & wife’ to ‘as if they were his or her husband & wife’ (same sex or de facto partners discrimination)

• Fair trials: DPP delay, search & seizure, absolute/strict liability

• Criminal law: presumption innocence onus of proof – evidential vs legal/persuasive burden: R v Lambert (2001) House of Lords [eg Drugs of Dependence Amendment]

• Mental health – UK 3 DOI led to law reform. (Plan ACT HR audit)

1. fitness for discharge involuntary patients (2001);

2. removal of forensic prisoner to hospital detention after serving non-parole period (2002); &

3. appoint ‘nearest relative’ according to patient’s wishes (2003).

Impact of HR Act on ACT Corrections

• HR not bipartisan like discrimination – recent Opposition election platform: repeal HR Act & use $110m new prison funds for health

• Objects of new Prison/Sentencing laws – aim to rehabilitate (not just punish or incapacitate).

• loss of liberty, not all human rights, eg dignity

• segregation of accused/convicted, adults/children (s.19 & 20)

• Behavioural Management Regime unlawful as a whole, petty authoritarianism (NZ: Taunoa 2004)

• freedom of expression (s.16) - journalist interviews

• inhuman & degrading treatment (s.10) – protracted isolation

• right to life (s.9)– violent/racist cellmates (UK: Edwards, Amin)

• privacy (s.12) – strip searching visitors and surveillance

• Extra-territorial operation (currently ACT prisoners in NSW)?

National Context of Bill of Rights

• Precedent difficult from non-HR jurisdictions - one intra-national law in Australia (Pffeifer v Rogerson (2000))?

• No national HR frame of reference – Al Khafaji (2004) Federal govt power repeal Territory law - NT euthanasia

• National background of backsliding in international community eg refugees, reconciliation, & waning support of UN UN Optional Protocols (women & torture)

• AFP exercise Commonwealth powers - avoids ACT HR Act, eg terrorism offences

• Similar agency resistance to 1980s ‘new administrative law’ (FOI, Privacy & AD(JR))

Recent & Future Developments• Human Rights Community Forum 25 NGOs - 10 December: network, debate

HR issues, raise awareness, share expertise, understanding & develop strategic test cases. Interact HR IDC – even up participation

• Test and target HR education programs (general & legal) November• Engage vulnerable populations (eg ATSI, NESB, women, children)• Human rights artwork award in primary schools (plan celebrate 1 July) front

cover AR & pamphlet. High/tertiary students?• CLE training: Law Society (& National Judicial College) • Precedents set – develop agency protocols (MOUs)• Influence other jurisdictions (domino):Victorian Justice Statement 2004-14

(Charter of Rights & Responsibilities or Citizen’s Charter)• 1/5 year Act reviews: environment; direct access, ESCR• Academic criticism needs to be constructive: Vespa (small ACT) vs perfect

Rolls Royce (South Africa, but few resources to power) model: potential workable & improve step by step to implement - ‘trade up’

• International Criminal Congress Canberra (28/10/04): CJ Spiegelman supportive & Julian Burnside QC – ACT ‘beacon of hope’