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

1. Charter of Human Rights and Responsibilities: What does it mean for[ORGANISATION]? [PRESENTER’S DETAILS]

2. 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

3. 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?

4. 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?

5. 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)

6. 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

7. Human Rights in the Charter

8. 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

9. The key human rights

10. Activity: Human rights issues in the news Looking at The Age, assess: • Which stories raise human rights issues? • What rights are impacted?

11. Activity: Case study • What rights are raised by this scenario? • Whose rights are they?

12. 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

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

14. 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

15. 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

16. 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

17. 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

18. Public authorities relevant to [ORGANISATION] • Office of Housing • Victoria Police • Connex • Sheriff’s office • Infringement court • [INSERT FURTHER RELEVANT ORGS]

19. 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

20. Activity: Case study • What rights are raised by this scenario? • Whose rights are they? • Are the rights being limited? • Are the limitations reasonable?

21. 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.]

22. 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)

23. 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’

24. 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

25. 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

26. 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’

27. 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

28. 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

29. 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’

30. 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)

31. 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

32. 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’)

33. 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

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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

40. 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’

41. 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)

42. 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

43. Case studies • What Charter rights are relevant to this scenario? • Whose rights are they? • Are any rights being limited? • Are the limitations reasonable?

44. 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

45. 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?

46. 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

47. 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

48. 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

49. 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

50. 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