ACT Human Rights Office

1. ACT Human Rights Office Institutional 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

2. Introduction • Local Context of the Human Rights Act 2004 • The Role of the ACT Human Rights Office • Impact of HR Act on government practice • Impact of HR Act on community • Expected court cases (UK & NZ experiences) • Case study - Impact of on ACT Corrections • National Context • Recent & Future Developments

3. 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)

4. 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

5. 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

6. 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 indictment 2. double jeopardy (C/L): R v O’Neil 3. Workplace Protection Order: Firestone v ANU 4. Szuty v Smythe: defamation; & AAT housing case: Merritt & Commissioner for Housing.

7. 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 vLambert (2001) House of Lords [eg Drugs of Dependence Amendment] • Mental health – UK 3 DOI led to law reform. (Plan ACT HR audit) • fitness for discharge involuntary patients (2001); • removal of forensic prisoner to hospital detention after serving non-parole period (2002); & • appoint ‘nearest relative’ according to patient’s wishes (2003).

8. 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)?

9. 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))

10. 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’