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Charter of Human Rights and Responsibilities : What does it mean for [ORGANISATION]?. [PRESENTER’S DETAILS]. Workshop overview. Introduction to Human Rights Activity: Human Rights in the News Overview of the Victorian Charter Public Authorities’ Obligations under the Charter

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Charter of human rights and responsibilities what does it mean for organisation l.jpg

Charter of Human Rights and Responsibilities: What does it mean for[ORGANISATION]?

[PRESENTER’S DETAILS]


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Workshop overview

  • Introduction to Human Rights

  • Activity: Human Rights in the News

  • Overview of the Victorian Charter

  • Public Authorities’ Obligations under the Charter

  • Limitations on Human Rights

  • Substantive Charter Rights

  • Remedies for Breaches of the Charter

  • Activity: Case Studies

  • Implications of the Charter for [ORGANISATION]

  • Looking forward


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Context for today’s workshop

  • How can the Charter…

    • Assist me in advocating for my clients?

    • Assist my clients in obtaining redress if their rights have been breached?

    • Assist with targeting programs to those most in need?

  • What can I do to ensure that I act compatibly with the Charter?


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Thinking about rights

  • What would you want if:

    • your parent was placed in a rest home?

    • your partner was rejected for a job on the grounds of his or her ethnicity and accent?

    • your friend was arrested and charged for alleged criminal activity?


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What are human rights?

  • Human rights are those rights one needs to live a dignified life (a life worthy of a human being)

  • Human rights are:

    • derived from human dignity

    • universal, core minimum standards

    • common sense and common values

    • ‘essential in a democratic and inclusive society that respects the rule of law, human dignity, equality and freedom’ (Charter preamble)


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Who has human rights?

  • Me?

  • You?

  • Citizens?

  • Non-citizens?

  • Criminals?

  • Minority groups?

  • Companies?

  • Human rights belong to all human beings by virtue of them being human



  • Governments human rights obligations l.jpg
    Governments’ human rights obligations

    • Protect rights

      • Prevent others from violating rights

    • Respect rights

      • Do not do anything that violates rights

    • Fulfill rights

      • Take action to ensure that the right is enjoyed by all people in Victoria



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    Activity: Human rights issues in the news

    Looking at The Age, assess:

    • Which stories raise human rights issues?

    • What rights are impacted?


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    Activity: Case study

    • What rights are raised by this scenario?

    • Whose rights are they?


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    Overview of Victorian Charter

    • Requires all arms of government (parliament, government, courts) to consider human rights as part of decision-making processes

    • Requires the government to act compatibly with human rights

    • Requires courts to interpret and apply laws consistently with human rights


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    How do the arms of government protect and promote human rights?


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    Government

    Government must build human rights standards into policy, legislationand practices

    Government must provide a Statement of Compatibility or Human Rights Certificate with all new laws

    Parliament

    Parliamentary Committee (SARC) also reviews compatibility

    Parliament can decide that a law ‘overrides’ the Charter and issue an Override Declaration (should be rare)

    Effect on new laws


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    Effect on interpreting laws

    • All Victorian legislation must be interpreted and applied in accordance with the Charter

      • if this is possible and does not undermine purpose of the law

    • The Supreme Court can issue a declaration of inconsistent interpretation if it is impossible to interpret a law in accordance with the Charter

      • but an inconsistent law is still valid


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    What is a ‘Public Authority’?

    • Definitely public authorities:

      • Ministers

      • Government departments

      • Public officials and servants

      • Victoria Police

      • Local governments

      • Statutory bodies

    • Might be public authorities:

      • If they perform a service on behalf of government

      • If what they do is otherwise connected to or identified with government

      • If their functions are specifically set out in law

      • If they receive public funding


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    Public authorities’ obligations under the Charter

    • Must give ‘proper consideration’ to human rights in decision-making processes

      • No blanket or inflexible rules; real, genuine and proportionate consideration

    • Must act compatibly with human rights

      • Means treating people as individuals and according to their needs

    • Must interpret and apply laws compatibly with human rights

      • Requires active consideration and a sincere attempt to comply with human rights


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    Public authorities relevant to [ORGANISATION]

    • Office of Housing

    • Victoria Police

    • Connex

    • Sheriff’s office

    • Infringement court

    • [INSERT FURTHER RELEVANT ORGS]


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    Limitations on human rights

    • Rights are not ‘absolute’

    • Rights may be subject to limitations that:

      • Have a legitimate and compelling aim;

      • Are proportionate to that aim; and

      • Impair the right as little as reasonably possible

    • Financial considerations alone are not a sufficient reason to limit rights


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    Activity: Case study

    • What rights are raised by this scenario?

    • Whose rights are they?

    • Are the rights being limited?

    • Are the limitations reasonable?


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    Rights most relevant to [ORGANISATION]?

    • [Insert the names of 3-4 rights in these bullet points (eg, ‘Privacy’ ).]

    • [From the slides that follow that set out the substantive rights, select 3-4 slides you think are most relevant for the particular organisation. Refer to the Presenter’s Manual to select the most appropriate rights.]


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    Equality and non-discrimination (s 8)

    • Right to recognition as a person before the law

      • all people have legal rights in a general sense

    • Enjoyment of human rights without discrimination

      • every person should be able to enjoy the human rights that are set out in the Charter without discrimination

    • Equality before the law, equal protection of the law, protection against discrimination

      • people must not be discriminated against based on any of the attributes listed in the Equal Opportunity Act 1995 (eg age, gender, race)


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    Right to life (s 9)

    • Right to life and freedom from arbitrary deprivation of life

    • Tripartite obligations:

      • Negative obligation ‘not to take life without justification’

      • Substantive obligation to ‘establish laws, precautions, procedures and enforcement which protect life to the greatest extent reasonably practicable’

      • Procedural obligation to undertake ‘effective, independent, public investigation where substantive obligation may have been breached’


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    Freedom from torture, cruel, inhuman and degrading treatment (s 10)

    • Torture is severe pain and suffering (physical or mental), intentionally inflicted, for a prohibited purpose

    • Cruel and inhuman treatment involves less severe physical or mental ill-treatment than torture. It does not need to be intentional and the purpose is not relevant

    • Degrading treatment is treatment that humiliates or debases a person.

    • No medical or scientific experimentation or treatmentwithout consent


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    Freedom from slavery, servitude or forced work (s 11)

    • Freedom from slavery and servitude

      • ‘Slavery’ means effective ownership of a person by someone else, as if the person were a piece of property

      • ‘Servitude’ means being forced to perform labour for another person under coercion

    • Freedom from forced work

      • Forced work is work a person is made to do under the threat of a penalty, which he or she has not voluntarily offered to do

      • It does not include

        • Work done during legitimate detention or on conditional release from detention (such as prison work or community service)

        • Community service in a public emergency

        • Any work that forms part of a normal civic obligation, such as jury duty or maintaining a building if you are a landlord


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    Freedom of movement (s 12)

    • Right to move freely within Victoria

    • Right to enter and leave Victoria

    • Freedom to choose where to live

    • Applies to all persons ‘lawfully in Victoria’


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    Privacy (s 13)

    • ‘Privacy’

      • Broad term which covers all aspects of a person’s physical, psychological and social identity and relationships

    • ‘Family’

      • Broad interpretation to include all those comprising the family as understood in society and is not confined by marriage

    • ‘Home’

      • Includes ‘where a person resides or carries out their ordinary occupation’

    • Right to not have your reputation unlawfully attacked


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    Freedom of thought, conscience, religion and belief (s 14)

    • Freedom of thought

    • Freedom of conscience

    • Freedom of religion and belief

      • Including right to have, adopt, worship, observe, practice and teach this religion or belief, either individually or as part of a community, in public or in private


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    Freedom of expression (s 15)

    • Includes the freedom to seek, receive and impart information and ideas of all kinds, whether orally, in writing, in print, through art or another medium

      • Information and expression regarding ‘core democratic processes’ enjoys a ‘very high degree of protection’

      • Includes protection for unpopular or offensive ideas

      • May be limited to ‘respect the rights and reputation of other persons or for the protection of national security, public order, public health or public morality’


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    Peaceful assembly and freedom of association (s 16)

    • Peaceful assembly:

      • Right for individuals and groups to meet together to receive or impart information or ideas, to express their views or to hold a protest

    • Freedom of association with others:

      • Right for persons to join together in groups to pursue common interests (eg, social groups, political parties, trade unions)


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    Families and children (s 17)

    • Modelled on art 24 of the ICCPR which requires:

      • ‘development of necessary protections by social institutions’

      • ‘every possible social and economic measure’ to, among other things, ensure protection from violence, exploitation and adequate nutrition

      • every possible measure to foster development, including provision of adequate education

      • ‘access to the conditions that guarantee a dignified existence’

    • Right of every child to protection which is in his or her best interest


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    Taking part in public life (s 18)

    • The right to participate in the conduct of public affairs

    • The right to vote and be elected at state and municipal elections (‘eligible persons’)

    • Right to have access to the Victorian Public Service and public office (‘eligible persons’)


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    Cultural rights (s 19)

    • Right to enjoy your culture

    • Right to practice or declare your religion

    • Right to use your language

    • Rights of Aboriginal persons to enjoy their identity and culture


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    Right to property (s 20)

    • Right not to be deprived of your property, other than in accordance with the law

      • Law must be accessible and non-arbitrary


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    Liberty and security (s 21)

    • Right to security of person

    • Freedom from arbitrary or unlawful detention or arrest (right to liberty)

      • Any restraint or deprivation of liberty must be proportionate and no more restrictive than is strictly necessary

    • Rights to certain processes when arrested or detained on a criminal charge


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    Humane treatment when deprived of liberty (s 22)

    • Right to be treated with humanity and dignity when detained

    • Right of an unconvicted person to be separated from persons who have been convicted of offences, except where reasonably necessary

    • Right of an unconvicted person to be treated appropriately


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    Children in the criminal process (s 23)

    • Right of a child to be held in detention separately from adults

    • Right of an accused child to be brought to trial as quickly as possible

    • Right of a child who has been convicted of an offence to be treated appropriately


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    Fair hearing (s 24)

    • Applies to criminal or civil courts and tribunals

    • The right to have the charge or proceeding decided by a competent, independent and impartial court after a fair and public hearing

    • Minimum basic elements of a fair hearing include:

      • Equal access to, and equality before, the courts

      • Right to legal advice and representation (inc right to civil legal aid in some circumstances)

      • Right to procedural fairness

      • Discretion as to costs

      • Right to expeditious hearing / trial without undue delay

      • Right to interpreter where necessary


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    Rights in criminal proceedings (s 25)

    • Right to be presumed innocent until proven guilty

    • Right to certain minimum guarantees when charged with a criminal offence

    • Right of a child charged with a criminal offence to a procedure which takes into account their age and their rehabilitation

    • Right to have any criminal conviction or sentence reviewed by a higher court


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    Right not to be tried or punished more than once (s 26)

    • Right not to be tried or punished more than once for an offence which a person has already been convicted or acquitted

    • This is known as the rule against ‘double jeopardy’


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    Retrospective offences and penalties (s 27)

    • An act must be a crime at the time a person commits the act, in order for the person to be subject to criminal punishment

    • The right of a person to not be subjected to a penalty which is more severe than that which existed at the time they committed the offence

    • The right of a person to receive a reduced penalty if that penalty was reduced before they are sentenced

    • This section does not affect trial or punishment where the conduct was a criminal offence under international law at the time it was engaged in (eg. a war crime, genocide)


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    What can you do if someone’s human rights are being breached?

    • Complaints processes

      • Informal or formal (first port of call)

  • Ombudsman

    • May enquire into or investigate whether any government action is incompatible with human rights

  • Misconduct procedures against public officials

    • Public officials are required to make decisions compatibly with human rights

  • Court proceedings

    • Can only be used where you can ‘piggyback’ on an existing case

    • No entitlement to damages


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    Case studies

    • What Charter rights are relevant to this scenario?

    • Whose rights are they?

    • Are any rights being limited?

    • Are the limitations reasonable?


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    How can the Charter be used in casework and advocacy?

    • Human rights are best practice and lead to best outcomes by:

      • empowering clients

      • improving service delivery

      • securing positive changes to individual circumstances

      • leading to systemic improvement of policies procedures


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    Importance of the Charter for [organisation] as a public authority

    • Use the Charter as an audit tool to ensure best practice and improved service outcomes:

      • Does the policy or practice raise any human rights issues?

      • Have we given proper consideration to these rights?

      • Are we limiting any human rights?

      • If so, is the limitation reasonable, proportionate, and impacting on rights as little as possible?


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    Key Charter messages

    • A human rights approach to service delivery is common sense and reflects existing best practice

    • Giving proper consideration to human rights in delivering services results in better outcomes and increased satisfaction


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    Looking forward: Inclusion of ESC rights in the Charter

    • Rights are indivisible

    • It is misguided to think that ESC rights are not suitable for scrutiny by the courts

    • The 4-year review of the Charter provides an opportunity to seek inclusion of these rights


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    Looking forward: A federal Charter of Human Rights?

    • Australia is the only Western democratic nation without a Charter of Human Rights

    • A federal Charter of Human Rights is needed to protect the human rights of all people in Australia

    • This Charter should include both civil and political as well as economic, social and cultural rights

    • Check out www.hrlrc.org.au or www.humanrightsact.com.au to find out how to get involved


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    Human rights in Victoria: Some useful websites

    • Human Rights Law Resource Centre: www.hrlrc.org.au

    • Victorian Equal Opportunity and Human Rights Commission: www.humanrightscommission.vic.gov.au

    • VCOSS: www.vcoss.org.au

    • Victorian Ombudsman: www.ombudsman.vic.gov.au

    • [PRESENTER’S LAW FIRM]

    • Federation of Community Legal Centres:www.communitylaw.org.au


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    Some useful resources on human rights

    • British Institute of Human Rights: www.bihr.org

    • UK Department of Justice: www.justice.gov.uk/whatwedo/humanrights.htm

    • Liberty UK guide to human rights: www.yourrights.org.uk

    • Site on international human rights:www.bayefsky.com


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