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

[PRESENTER’S DETAILS]

Workshop overview

1. Introduction to Human Rights

2. Activity: Human Rights in the News

3. Overview of the Victorian Charter

4. Public Authorities’ Obligations under the Charter

5. Limitations on Human Rights

6. Substantive Charter Rights

7. Remedies for Breaches of the Charter

8. Activity: Case Studies

9. Implications of the Charter for [ORGANISATION]

10. Looking forward

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?

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?

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)

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

Human Rights in the Charter

Freedommovement, assembly & association, forced work, expression, thought & religion, liberty & security, fair hearing

Respectlife, protection of families and children, cultural rights, property

Equalitynon-discrimination, equal recognition, participation

Dignitytorture & cruel treatment, privacy & reputation, humane treatment in detention

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

The key human rights

Civil and political rights Economic, social and cultural rights

Right to life Right to health

Right to privacy Right to food

Freedom from discrimination Right to adequate shelter

Freedom of expression Right to work and to just conditions of work

Freedom of thought, conscience and religion Right to education

Freedom of association, assembly and movement

Right to form and join a trade union

Freedom from torture, cruel, inhuman and degrading treatment

Cultural rights

Right to liberty and security Protection of families and children

Freedom from slavery Right to an adequate standard of living

Right to a fair hearing; rights in criminal proceedings

Right to social security

Activity: Human rights issues in the news

Looking at The Age, assess:

Which stories raise human rights issues?

What rights are impacted?

Activity: Case study

What rights are raised by this scenario?

Whose rights are they?

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

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

Government

Human rights standards built into laws and policies Assesses all new laws for compliance with human rights and reports to Parliament Responds to declarations made by Supreme Court

Courts

Where possible, interpret law to be compatible with the Charter Supreme Court can make a declaration that a law is not consistent with the Charter

Parliament

Passes laws after assessing them for compliance with human rights In exceptional circumstances, can override the Charter in passing legislationHas the final say on all laws

Government Government must build human rights standards into policy,

legislation and 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

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

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

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

Public authorities relevant to [ORGANISATION]

Office of Housing

Victoria Police

Connex

Sheriff’s office

Infringement court

[INSERT FURTHER RELEVANT ORGS]

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

Activity: Case study

What rights are raised by this scenario?

Whose rights are they?

Are the rights being limited?

Are the limitations reasonable?

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.]

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)

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’

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 treatment

without consent

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

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’

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

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

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’

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)

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

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’)

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

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

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

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

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

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

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

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’

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)

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

Case studies

What Charter rights are relevant to this

scenario?

Whose rights are they?

Are any rights being limited?

Are the limitations reasonable?

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

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?

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

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

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

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

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