Understanding Human Rights & the Charter of Human Rights in Victoria, Australia: Cases & A, Slides of Introduction to Sociology

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A HUMAN RIGHTS

BASED APPROACH

AGENDA

• Understanding the Charter
• How can your agencies use it
• What are the consequences
• Challenging discriminatory practices
• Creating a Human Rights Based Approach to our clients’ needs

Services and facilities of a public

nature affect human rights

Public decisions do

Overview

• Human rights protection necessary for stability
• Victorian Charter of Human Rights and Responsibilities includes other rights than those named in the Charter e.g. UNCRC
• You can’t ‘sue’ for a breach, but
• There are many ways to
• make them work in Victoria Statutes

old ways of doing things

How?

Local laws

liabilit y When?

Resp onsi biliti es

parliam Rights ent

Case Study 1 – Darlene’s little

problem

• What are the human rights issues in this case?
• How might they be used to help Darlene?

Definitions in the Charter

• Human Rights
  • Basically Civil and Political Rights (ICCPR)
  • Include any other right or freedom recognised by law
  • Belong to people, not corporations
• ‘Public Authority’ must respect them, including:
  • Public servants and statutory officers, local government
  • Statutory entity with functions ‘of a public nature’
  • Any entity with functions of a public nature when exercising them on behalf of the state or a public authority

HUMAN RIGHTS PROTECTED BY

THE CHARTER ARE:

• Recognition and equality before the law
  • As a person;
  • without discrimination;
  • To equal protection of the law; and
  • special programs for disadvantaged are permitted
• Life
• Protection from cruel, inhuman or degrading treatment
• Forced work
• Freedom of expression
• Peaceful assembly and freedom of association
• Freedom of movement
• Privacy and reputation
• Freedom of thought, conscience, religion and belief
  • Protection of families and children
  • Taking part in public life
  • Cultural rights
  • Property rights
  • Right to liberty and security of person
  • Humane treatment when deprived of liberty
  • special rightsChildren in the criminal process have
  • Fair hearing for an accused criminal
  • Rights in criminal proceedings
  • onceRight not to be tried or punished more than
  • Retrospective criminal laws not allowed

Who is bound by the charter?

• APPLIES TO ALL PUBLIC AUTHORITIES (and NGOs/private contractors performing public functions)
• IS INTENDED TO PROMOTE INDIVIDUALS’ RIGHT TO BE HEARD
• ALMOST A ‘SUPER LAW’ – SO FAR AS POSSIBLE ALL LEGISLATION HAS TO BE INTERPRETED TO BE COMPATIBLE WITH THE CHARTER or a Declaration of incompatibility will be issued by THE Supreme Court
• DEMOCRATIC DIALOGUE – proposed laws have to be measured against human rights protected by the Charter. NB – this is one way for NGOs to hold government to account

Overall

• Charter protects individuals who are natural persons, not corporations
• Duties on three branches of government
  • Parliament – compatibility statements (VEOHRC keeps a register)
  • Courts – interpret all Acts compatibly if possible
  • Executive – obligation to act compatibly, breach may be relied on in some legal proceedings
• In addition to FOI, Privacy, Administrative law, Whistleblowers protection, Ombudsman, anti- discrimination laws etc. – and the rules of natural justice

Case Study 2 – Stan’s detox

nightmare

Case Study 2: Stan’s detox nightmare

• Stan wants to get clean. He is a single father responsible for the care of 4 young children and they live in a rotten neighbourhood. He can’t get better rental accommodation either because agents claim the premises aren’t suitable for children, or because of his drug history and inability to provide referees.
• He lost his last job because of his dependency. He is about to lose his accommodation because of complaints by neighbours. Stan recently hurt himself and was treated in Emergency in the local hospital treatment but they refused to admit him, after treatment of his physical injuries, because he would need intensive detox in addition to regular medical care. He has made inquiries about detox facilities and found a number of possibilities, but none that will accommodate his need to take care of the children.
• What human rights issues are involved here? How could a Charter argument help Stan?

HOW NGOs CAN USE THE

CHARTER

• Demanding protection of human dignity
• Challenging discrimination
• Promoting participation and HR sensitive decision-making
• Challenging brutality
• Taking positive steps to protect human rights
• Using human rights principles where resources are an issue
• Using human rights to challenge blanket policies
• Protecting human rights in contracted-out services

Some UK cases where human rights

made a difference...

• DIGNITY
• Staff refused to clean the room of a man detained in a maximum security psychiatric centre in seclusion, where he repeatedly soiled himself, or move him saying he would just ‘do it again.’ The advocate challenged the treatment of the man on the basis of inhumane and degrading treatment, and his right to privacy, successfully.
• CHALLENGING DISCRIMINATION
• A psychiatric hospital had a practice of sectioning asylum seekers who didn’t speak English without an interpreter. An NGO successfully challenged this practice on human rights ground: it was a breach of their right not to be discriminated against on the basis of language, and their right to liberty.
• PROMOTING PARTICIPATION
• A disability support team had a policy of providing support to users who wanted to participate in social activities, but refused to provide a worker for a gay man who wanted to go to a gay pub. Heterosexual users regularly went to clubs and pubs of their choice. The man’s advocate challenged this on the basis of the man’s right to respect for his privacy and not to be discriminated against on the basis of sexuality