using the victorian charter of human rights and responsibilities n.
Download
Skip this Video
Loading SlideShow in 5 Seconds..
Using the Victorian Charter of Human Rights and Responsibilities PowerPoint Presentation
Download Presentation
Using the Victorian Charter of Human Rights and Responsibilities

Loading in 2 Seconds...

play fullscreen
1 / 16

Using the Victorian Charter of Human Rights and Responsibilities - PowerPoint PPT Presentation


  • 102 Views
  • Uploaded on

Using the Victorian Charter of Human Rights and Responsibilities. Phoebe Knowles Secondee Lawyer PILCH Homeless Persons’ Legal Clinic and Human Rights Law Resource Centre (03) 9225 6648. Outline. Creating the space to use the Charter :

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'Using the Victorian Charter of Human Rights and Responsibilities' - Patman


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
using the victorian charter of human rights and responsibilities

Using the Victorian Charter of Human Rights and Responsibilities

Phoebe Knowles

Secondee Lawyer

PILCH Homeless Persons’ Legal Clinic and Human Rights Law Resource Centre

(03) 9225 6648

outline
Outline
  • Creating the space to use the Charter:
    • in oral submissions before VCAT (or any other Victorian court);
    • in advocacy with the other side; and
    • in written submissions.
  • Step by Step guide
  • Key messages:
      • Be bold
      • Do your homework: back up your arguments with evidence and analysis
case study
Case study
  • Facts:
    • Client: Bec is a pregnant, single mother to two children and lives in community housing.
    • Landlord: The landlord is community housing association. Its sole function is the provision of community housing and it receives substantial assistance and funding from local and State Government.
    • Procedural background: Bec fell behind in rent and so following a VCAT proceeding, entered a payment plan to repay arrears.
    • Potential breaches by client:
      • Bec is currently in arrears.
      • Following an inspection, the landlord requested Bec clean some hand marks and scrapes from the walls and clean 3 stains on the carpet. Bec has cleaned the walls and intends on cleaning the carpets as soon as possible.
      • Her ex-partner has caused disruption at the property in the past. Bec took out a restraining order against him.
    • Shortly after the inspection of the property took place Bec was served with a 120 notice to vacate under s 263 of the Residential Tenancy Act (RTA). Section 263 of the RTA enables a landlord to evict a tenant without reason.
getting started
Getting started
  • Scenario: client telephones with a complaint. What do you do?
  • In order to use the Charter in oral or written submissions, some answers must first be found:
    • Is there a human right which is engaged? Which one?
    • Is your respondent a public authority?
    • What are their obligations under the Charter, other statutes and at common law?
    • What are the weaknesses of your case?
    • Is the limitation on human rights justified?
    • What do you want to achieve?
identifying the rights 1
Identifying the rights (1)
  • Step 1: Does the action complained of engage one of the following concepts?

F reedom: movement, assembly, expression, religion, association, liberty

R espect: life, protection of families, cultural rights

E quality: non-discrimination, equal recognition

D ignity: torture, cruel treatment, privacy, reputation, humane treatment in detention

identifying the rights 2
Identifying the rights (2)

Step 2: Identify the right in the Charter

  • Look through the Charter! Take some time to consider the matter and the issues it brings up.
  • Right to life (s 9)
    • Right to live with human dignity
  • Right to liberty and security of person (s 21)
    • Homelessness means people live without the protection of a safe and secure place to live, adequate food, clothing and shelter.
  • Protection from cruel, inhumane or degrading treatment or punishment (s 10)
    • Physical and mental integrity and dignity
  • Right to privacy (s 13)
    • Arbitrary or unlawful interference with privacy, family, home or correspondence
  • Protection of families and children (s 17)
against whom can you bring the arguments
Against whom can you bring the arguments?
  • Step 3: Is the entity complained about a “public authority”?
    • Definition found in section 4 includes core and functional
    • Start researching your respondent. Look at their website and public profile.
    • What is the function they perform? Do we identify this function with the state?
    • Do they receive public funding?
    • Do they maintain a relationship with the state?
  • Step 4: If the respondent is a public authority, what are its obligations under the Charter?
    • How should your client have been treated?
step back
Step back
  • Step 5: Are there other causes of action available to you?
    • Consider your respondent’s obligations under statute and at common law (e.g. Housing Act, OH&S, Wrongs Act, TPA, RTA)
  • Step 6: Deal with the facts and weaknesses of your case
    • At this point, you should have a sense of your case – step back, are your arguments sensible and honest?
    • Reality check your position and potential arguments.
is the action a reasonable limitations on human rights
Is the action a reasonable limitations on human rights?
  • Step 7: Analyse the action to ascertain whether it is a justified limitation
  • s 7 Human rights – what they are and when they may be limited

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom and taking into account all relevant factors, including –

(a) the nature of right; and

(b) the importance of the purpose of limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

pulling everything together 1
Pulling everything together (1)
  • Step 8: Collate your findings and develop your arguments
  • Step 9: What does your client want?
    • From the court:
        • Human rights compatible interpretation of legislation: s 32(1). This is a new, overarching principle of statutory interpretation.
        • Consideration of international and comparative human rights law and jurisprudence: s 32(2).
        • Declarations of Inconsistent Interpretation: s 36.
        • Judicial review, injunctive and declaratory relief: s 39(2).
    • From the public authority:
        • Obligations under the Charter on public authorities (s 38):
          • give ‘proper consideration’ to human rights in decision-making processes and act compatibly with human rights; and
          • interpret their statutory obligations compatibly with human rights (s 32)
        • Public Administration Act 2004 (Vic) (s 37) requires public officials to respect, promote, implement and support human rights.
pull everything together 2
Pull everything together (2)
  • Step 9: What does your client want? (cont’d)
    • From the Ombudsman
      • Consequential amendments to the Ombudsman Act 1973 (Vic): Ombudsman may enquire into or investigate whether any administrative action is incompatible with human rights
      • Remedial powers include recommendation that authority:
          • Apologise
          • Change policy, procedure or practice
          • Compensate
          • Institute disciplinary or criminal proceedings
  • Step 10: go for it!
general tips
General Tips…
  • Know your audience
  • Know your stuff
    • Know the rights
    • Know the law
  • Know your client
    • Human rights lawyering focuses on the individual whose rights have been violated. It’s not about the cause.
research tools international jurisprudence
Research tools - International Jurisprudence
  • UN Treaty Body Database
      • http://tb.ohchr.org/default.aspx
  • UN Human Rights Committee
      • http://www2.ohchr.org/english/bodies/hrc/index.htm
      • http://www.bayefsky.com/bytheme.php/index/article/treaty/CCPR
  • UN Special Rapporteurs
      • http://www2.ohchr.org/english/bodies/chr/special/index.htm
  • Other treaty bodies
      • http://www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx
research tools regional jurisprudence
Research tools - Regional Jurisprudence
  • European Court of Human Rights
      • http://www.echr.coe.int/echr
  • Inter-American Commission on Human Rights
      • http://www.cidh.org/DefaultE.htm
  • Inter-American Court on Human Rights
      • http://www.corteidh.or.cr/
  • African Commission on Human and Peoples’ Rights
      • http://www.achpr.org
research tools comparative domestic jurisprudence
Research tools - Comparative Domestic Jurisprudence
  • Commonwealth
      • http://www.interights.org
  • ACT – Human Rights Act 2004
      • http://acthra.anu.edu.au/
      • http://www.hro.act.gov.au/index.html
  • UK – Human Rights Act 1998
      • http://www.justice.gov.uk/guidance/humanrights.htm
      • http://www.yourrights.org.uk/
      • http://www.humanrights.org.uk/5/
  • New Zealand – Bill of Rights Act 1990
      • http://www.humanrights.net.nz/
      • http://www.hrc.co.nz/home/default.php
  • Canada – Charter of Rights and Freedoms 1982
      • http://www.canlii.org/en/ca/charter_digest/index.html
further information
Further Information

PILCH Homeless Persons’ Legal Clinic

Level 1, 550 Lonsdale Street

Melbourne VIC 3000

(03) 9225 6643

The Human Rights Law Resource Centre has an excellent website for human rights research:

www.hrlrc.org.au