ACT Human Rights Office
ACT Human Rights and Discrimination
Commissioner: Dr Helen Watchirs
The ACT Human Rights 2004:
Lessons & Experiences 18 months of operation
Castan Centre for Human Rights
2 December 2005
Development of ACT HR Act
• Preamble: ‘live lives of dignity and value’
• ACT 2002 Bill of Rights Consultative Committee
- Report 2003 (NZ & UK models)
• Australian Constitution and common law not fully
implement international HR obligations: respect,
protect, fulfil, & promote
• Protects civil & political rights (ICCPR)
Key features of ACT HR Act
• HR Act ordinary, not constitutionally entrenched
• Interpretative model – s.30 ‘in working out the
meaning of a Territory Law, an interpretation that
is consistent with human right is as far as
possible to be preferred’
• No direct application to agencies
• No direct access to courts
• International law relevant (s.31)
• Need to clarify some rights absolute
Roles of democratic institutions
• Respects constitutional & democratic boundaries –
courts, parliaments, & the executive
• Supreme Court can issue Declarations of
Incompatibility – table parliament & govt must
respond
• Parliament has last say about amending laws
• Only applies to ACT not Federal laws
• Act applies across whole ACT legal system
Human Rights Commissioner
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review & report on effect of laws to AttorneyGeneral, eg Audit of Juvenile Detention Centre –
Children & YP Act 1999
advise Attorney-General laws - emergency ECT
power to seek leave to intervene in courts
Supreme Court notifies HRC & A-G - consider
issuing a declaration of incompatibility
community education - training, newsletter, art
awards, interns
biannual Community Forum - 10 December 2004
(International HR Day) & 1 July 2005 (Act
commenced)
strategic focus redress most vulnerable
Proposed law
Attorney General prepares a
Compatibility Statement about whether
the proposed law is consistent with
human rights (s.37)
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
Legislation is passed
with due consideration
to Human Rights,
including proportionality
test - reasonable in a
free and democratic
society (s.28)
Laws must, so far as possible, be
interpreted with consideration of
human rights (s.30)
Restrictions on
rights in
legislation
stands
Supreme Court may issue a Declaration of
Incompatibility which must be tabled before the
Legislative of Assembly (s.32)
Interpretation
consistent with
Human Rights isn’t
possible
Civil & Political Rights (ICCPR)
• 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
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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
Balancing rights - proportionality test
s.28 ‘Human rights may be subject only to reasonable limits
set by Territory laws that can be demonstrably justified
in a free and democratic society’.
1. the limitation adopted achieves the objective in
question, eg prevent terrorism;
2. the means, even if rationally connected to the objective,
should impair as little as possible the right or freedom in
question, eg right to fair trial; and
3. there must be a proportionality between the effects of the
limitation & the objective. The more severe the effects of
a limit, the more important the objective must be if the
limit is to be reasonable & demonstrably justified – eg
criminal offence for breach of civil control order, or
disclose preventive detention.
Emergency ECT
• Draft Bill: public exposure draft & amended
• Only proportionate when saving life
• Same safeguards as ordinary ECT: s.26, ie best
interests, wishes of consumer, attempt other
treatments, records, notify OCA, cap numbers
• Second psychiatrist + full Tribunal
• Children: no legal precedents. Age consent usually
16 (evolving capacity CRC)
Juvenile Detention Centre
• Quamby Human Rights audit
• loss of liberty, not all human rights, eg dignity
• Classification segregation of accused/convicted,
adults/children
• Behavioural Management Regime – unlawful mix
discipline & remission of sentence
• inhuman & degrading treatment isolate, lockdown
• privacy – routine strip search, surveillance, visits,
telephones, correspondence, legal & media access
Impact – government & community
• S.38 LA Standing Committee Terms of Reference
• S.37 all government Bills required to have A-G’s
Compatibility Statement
• Cabinet Submission box (eg environment, women)
• DJACS website: Scrutiny Guidelines, Plain
English Guide,
• Australian Research Council Linkage (ANU)
• Annual report measures: respect, protect, promote
• Departments consultant audits Health & Education
• National Judicial College training - NZ
• Law Society Special Issue of Journal Ethos
Agency Annual Reports
• Requirement to report on measures to respect,
protect, promote
• ACT Audit Office – integrated: procedural
fairness; Public Interest Disclosure; inclusive
management; Cert. Agreement conditions of
employment; Equity & Diversity Guidelines
• Performance Audit Report – Courts
Administration 2005.
• Advice A-G delay – right to fair trial: BRC 20
detainees more than 100 days (worst 14 July 2003)
• UK HR Act central legislation governing agencies
Judicial Scrutiny 2004/05
•R v YL
•R v O’Neil
•Firestone v ANU
•Szuty v Smythe
•Robertson v ACT
•R v Martiniello
•R v Trevitt
•Fletcher v Harris
•Buzzacott v the Queen
•Le
•R v Upton
•Re Application for Adoption of TL
•AAT Merritt & Commissioner for Housing
Controversies
• Criminal law: presumption innocence onus of
proof – evidential vs legal/persuasive burden
• Fair trials: Prosecution delay, search & seizure
powers, absolute/strict liability for offences, bail
• Preventive detention of sex offenders? (& register)
• Prisoners right to vote in elections
• Australian Federal Police exercise Commonwealth
powers - ACT HR Act? eg protestors Federal land
• Mental health – UK 3 DOI, eg fitness discharge
involuntary patients onus on govt, not patient
Federal Anti-Terrorism Bill 2005
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Most informed public debate on HR
Disproportionate impact Muslims
Legal Profession unified - rule of law
UK model: Preventative Detention &
Control Orders
• Sunset 10 years, review 5 years
• Paradox: dual executive & legal system
• ACT draft law - HR compliant: full review
HR & Security
• Liberty, fair trial, family, association,
communication, movement, privacy, religion
• Transparent process & community debate
• HREOC President: Police State indicia exercise
powers of govt without effective judicial review
• Medium National Counter-Terrorism Alert
• Detention humane & no questioning (ASIO law)
• National Security (Criminal & Civil Proceedings)
Act 2005
• First arrest current cases Mirsad Mulahalovic: 12
November 2005 Sydney (SMH artist)
Preventative detention
• 2 (federal) + platform 14 days (States)
• UK extended 14 to 28 days (no 90)
• Broad grounds – reasonable suspicion will engage,
possess a thing that is connected with the
preparation/planning for an imminent terrorist act
• Issued by AFP initially – continued by judges
• Changes: disclosure to parents, shoot to kill
• House Lord’s DOI 2004 Anti-terrorism Crime &
Security Act 2001
• Senate Committee Recommendations
Control Orders
• 12 months & successive (3 months: 16-18yo)
• stronger than DVOs & PPOs
• Initial ex parte, but subject to full judicial review
(merits) – no time limit to lapse (UK 7 days)
• Wide grounds – reasonable belief substantially
assist in preventing a terrorist act, & training TO
• Reasons for order proportionate?
• Limits: house arrest, electronic tagging,
movement, work, travel etc
• Senate Committee Recommendations
Building Human Rights Culture
• Impact on govt & community, not just cts
• comprehensively integrate and mainstream
in programs, policies & legislation
• challenge service delivery, not charity
• specialist Public Forums: Corrections,
Mental Health & Victims of Crime
• Asia Pacific region no HR regime
UK Experience
• 1998 HR Act in force 2000 – 2 years lead time
• Commission for Equalities & Human Rights Act
2005 in force 2006
• Specific benchmark in systemic work, eg prisons
• UK Audit Commission (2003) 50% awareness
• insufficient training of service providers
• no community education program
• Lord Carswell impact on judiciary and profession
Economic, Social & Cultural
Rights
• Consultative Committee’s Recommendations
ICESCR not implemented
• UK & European cases education
• South Africa: Grootboom (2000) shelter
• health - ‘reasonable measures’ Soobramooney v
Minister of Health (Kwazulu-Natal) (1997) &
Minister for Health v Treatment Action Campaign
(2002):
Review of Discrimination Act
• Strengthen racial vilification - ‘public act’
that ‘incites hatred towards, serious
contempt for, or severe ridicule of a person
or group’
• Freedom of speech – ICCPR specific
obligation to prohibit racial and religious
hatred
• New ground eg socio-economic status?
The Future?
• HR Commission Act 2005: complaints &
systemic review health/aged, children/YP,
disability, & community services
Commissioners & President
• HR culture: partner community and govt
• 1/2 & 5 year HR Act review
• National Bill of Rights – Anti-terrorism Bill
2005 catalyst?
‘Beacon of hope’
Julian Burnside, QC