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
Introduction
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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
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)
The Role of the ACT Human Rights Office
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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 AntiTerrorism 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
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).
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;
Expected litigation (UK & NZ experiences)
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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 v Lambert (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 nonparole period (2002); &
appoint ‘nearest relative’ according to patient’s wishes (2003).
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)?
National Context of Bill of Rights
• Precedent difficult from non-HR jurisdictions - one intranational 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))
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’