Dr Helen Watchirs OAM Human Rights & Discrimination Commissioner ACT Human Rights Commission

1. ACT Public Service Young Professionals Network CIT, 30 April 2010 Introduction to ACT Human Rights Act 2004 Dr Helen Watchirs OAM Human Rights & Discrimination Commissioner ACT Human Rights Commission

2. The Human Rights Commission • Vision: working towards an ACT community where rights are respected & promoted, responsibilities are understood, & access to quality services is protected • established 1 November 2006 under Human Rights Commission Act 2005 • 3 Commissioners: Human Rights & Discrimination Commissioner; Health & Disability Services Commissioner (Mary Durkin); Children & Young People Commissioner (Alasdair Roy) • new website www.hrc.act.gov.au

3. HR Act implementation provisions • International Covenant on Civil & Political Rights (ICCPR), not Economic, Social & Cultural Rights (ICESCR). • s.40B unlawful for a public authority (+ right of action in SC) • (a) to act in a way that is incompatible with a human right; or • (b) in making a decision, to fail to give proper consideration to a relevant human right. • s.37 A-G’s compatibility statement - all Government Bills • s.38 LA Standing Committee Terms of Reference– all Bills • s.32 ACT Supreme Court may issue a declaration of incompatibility (nil in ACT, one in Victoria) - parliament has final say on validity of legislation. • s.30 Interpretative clause - ‘so far as it is possible to do so consistently with it s purpose, a Territory law must be interpreted in a way that is compatible with human rights’.

4. HRC Human Rights Functions • S.36 intervention power of HR Commissioner & stronger notification provisions of HR cases: Intervention Guidelines • S.41 review of effect of territory laws on human rights, ie audit power - focus on most vulnerable groups in detention: Quamby 2005, adult Corrections 2007. • Advise & report on systemic laws, policies & issues – eg bikie gang laws and anti-terrorism legislation • Agency Annual Reports on HR measures summarised in HRC’s submission to one and five years Review of HR Act [poor in 2006 to improved in 2009] • Psychiatric Services Unit 2008 Services Review under HR Commission Act by Health Services Commissioner, using a human rights framework. • 2009 community & ACT public service online surveys positive

5. Life Recognition & equality before law & non-discrimination Torture, cruel, inhuman or degrading treatment Family & children Privacy Freedom of movement Freedom of thought, conscience, religion & belief Freedom of expression Rights of minorities Association & assembly Take part in public life Liberty & security Humane treatment in detention Criminal process rights Fair trial Freedom from force work No double jeopardy or retrospective criminal laws Compensation for wrongful conviction Civil & Political Rights (ICCPR)

6. Building A Human Rights Culture • Preamble of HR Act: ‘human rights are necessary for individuals to live lives of dignity and value’ • Cabinet Sub administrative requirement: HR impact • litigation in courts not full success – more important impact on government & community • comprehensively integrating into design, implementation, evaluation of programs and policies – eg Guidelines, checklists • mainstreamed in development & interpretation of policy, legislation & services • include in decision templates, eg HRC discrimination complaints – right to equality • challenge for service delivery, HR not charity model eg supported accommodation

7. ACT Litigation 122 cases in nearly 6 years – 60% criminal cases, eg bail, delays, double jeopardy & protection orders. Civil cases – adoption, defamation, mental health, tenancy & discrimination • Fearnside – 3 step test: 1. does the legislation enliven a human right? (eg right to fair trial does not specify judge/jury – jury is common law) 2. if yes (Step 1), is the limit on the human rights reasonable under s.3? 3. if yes (Step 1) but no (Step 2), then consider and apply s.30 interpretative provision. • Morro, N & Ahadizad etc – compensation for unlawful detention • Hakimi – Legal Aid Work Allocation Guidelines complaint choice of counsel • Canberra Hospital mentally unwell man cannot consent to withdrawal of treatment/food (cf Rossiter case in WA – legally competent) • Raytheon – Race discrimination exemption interaction with HR Act • Emelyn Jones - Discrimination Act same sex vilification on Canberra Times blog site • Thomson v ACTPLA – review rights limited (fair trial and privacy)

8. Victorian cases Charter of Rights & Responsibilities Act2006 • Momcilovic (SCA) – Declaration Incompatibility for reverse legal onus on drug possession/trafficking and presumption of innocence • Kracke v MHRB (VCAT) – broad interpretation of administrative functions of Tribunals, and requirement to review psychiatric orders every six months • Re an application under the Major Crime (Investigative Powers) Act 2004 (SC) – self-incrimination issues • Metro Westv Sudi (VCAT) – social housing contractors are public authorities

9. 2008/09Agency Annual Reports: HR • Legislative & policy drafting for Cabinet Submissions – all agencies • Equity & Diversity (‘E&D’), anti-discrimination & harassment/bullying policies, eg CIT: Strategic Plan, cultural awareness, disability access, workshops & training • Poor example repeated: ‘ACTEW’s Human Rights Policy Statement outlines the Corporation’s commitment to respecting and protecting human rights and applies to all operations and functions. There were no reports of matters or activities which contravened the Act during the year.’ HR Policy not on website. [similar ACTPLA & ACTTAB] • Good examples: - DHCS: internal committee; Homelessness Charter 2008; Disability ACT implementation of UNCRPD; HR Audit, Bimberi Youth Justice Centre; • DET: consult HRC, ATSI, training, develop legislation & policy - DJACS: compatibility statement, executive workshops, ANU project, Corrections MOU - Health: training; induction; privacy medical records; Mental Act Review

10. HRC submission on 5 year Review of HR Act • Optional Protocol on Convention Against Torture: need to increase HRC’s audit & inspection powers (s.56 Corrections Management Act 2007) - covers corrections, psychiatric, preventative detention under anti-terrorism laws, disability homes, immigration, nursing homes etc; • Non-derogable rights - no limits permissible, eg torture; • Agree with ANU HR Act project: 30 recommendations in 5 year research project - include ESCR - HRC deal with civil HR complaints (criminal cases sub judice); - damages available (UK model); require reasons for legislative Compatibility Statements - cost capping in court; - Human Rights Inter-Departmental Committee; - Victoria bilateral work - continuing regular 5 year reviews.

11. Federal HR Consultation Committee • Brennan Committee 35,000 submissions (nearly 29,000 favour HR Charter) - October 2009 Report; • Federal Attorney-General announced formal response on 21 April 2010: Australia’s Human Rights Framework • does not supports national HR Act (ordinary legislation, dialogue model, not US model) with cause of legal action and damages (UK) • legislate for Joint Parliamentary Committee to scrutinise HR • legislate for compatibility statements to accompany Bills & Regns • amend Cabinet & Legislation Handbooks to reflect changes • review existing laws, policies & practices for HR compliance, eg anti-terrorism • review Public Service Code of Conduct and Values, & develop HR Toolkit • $12.4m HR education – AHRC, NGOs and public service • consolidate Federal discrimination laws (race, sex, disability & age) & harmonise State/Territory laws through SCAG

12. Attorney General prepares a Compatibility Statement about whether the proposed law is consistent with human rights (s.37) Proposed law The proposed law is also scrutinised by LA Standing Committee on Legal Affairs Human Rights issues raised by the proposed law are reported to the Legislative Assembly Laws must, so far as possible, be interpreted with consideration of human rights (s.30) Legislation is passed with due consideration to Human Rights, including proportionality test - reasonable in a free and democratic society (s.28) Restrictions on rights in legislation stands Interpretation consistent with Human Rights isn’t possible Supreme Court may issue a Declaration of Incompatibility which must be tabled before the Legislative of Assembly (s.32)