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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’

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Act human rights office

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

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

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

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

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


Act human rights office

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

Proposed law

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

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

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

Restrictions on rights in legislation stands

Interpretation consistent with Human Rights isn’t possible

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

Civil & Political Rights (ICCPR)


Balancing rights proportionality test

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’.

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

  • 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

  • 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘Beacon of hope’ Julian Burnside, QC


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