Charter of Human Rights and Responsibilities: comforting rhetoric or a tool to combat marginalisation?

13/02/2007

VAADA Conference 2007
Dr Helen Szoke, Chief Conciliator/Chief Executive Officer

I wish to begin by paying my respects to the traditional owners of the land, and acknowledging their sacred connection to the land. May I also pay my respects to Joy Wandin Murphy who is a Senior Elder of the Wurundjeri people and to any other elders past and present.

It is a great privilege to be able to present at this conference and to take this opportunity to talk about the Charter of Human Rights and Responsibilities. In doing so, I should acknowledge that there is a great deal of excitement about the Charter, and also some understandable scepticism. I think the challenge for us all is to understand what the Charter means for all Victorians and what it means for the protection of human rights into the future.

At the outset, I would like to be clear that one of the greatest challenges facing us, and particularly for people like yourselves working within the area of drug and alcohol addiction, is to educate the community that human rights are for all people, not just those who we think deserve them, or who we approve of, or who are most like us. We should never underestimate the nature of that challenge.

I note that the themes of your conference today relate to the holistic treatment of people who use alcohol and other drugs, and certainly from my own experience of working in the health sector for many years, and particularly trying to advocate for a social model of health, this will be a challenge. One of the greatest challenges facing governments in their service delivery is to move from the silos of functional service areas into recognising that a person has multiple, varying and diverse needs at any point in their life, and their interaction with government services makes this more complex.

Will a Charter of Human Rights and Responsibilities make a difference to this?

Let me take some time to explore what the Charter means and what that means for all of you who work in this important area.

Let me say at the outset, that I am extremely optimistic about the importance of the Charter. There is no doubt in my mind that the existence of the Charter will have an incredible impact on the way government undertakes its business. I would go so far as to say that Victoria's parliamentary democracy began in earnest with the commencement of the Charter of Human Rights and Responsibilities.

If we fully exploit the opportunities afforded by the Charter, the Equal Opportunity and Human Rights Commission would argue that we are actually embarking on a path of change that will fundamentally enhance not just our system of government, but our community in general.

At the most simple level we know a lot about the experience of 30 years of anti discrimination legislation in this state. In that time we have seen various iterations of the Equal Opportunity Act that reflect a growing awareness in our community of what is acceptable and what is not in relation to anti discrimination. Those changes have kept abreast of changing community attitudes and increasing levels of intolerance of discriminatory behaviour or sexual harassment. What was once described as political correctness gone mad is now an accepted part of the way we live our lives.

I am not suggesting that we need thirty years before we feel the effect of the Charter on the way we do business, but the process is progressive and iterative.

What does having a Charter Mean?

Compliance with the Charter is an issue for the public sector. We will need to be clear about what constitutes a 'public authority' in terms of compliance with the Charter, and I am sure that this is something that many of the NGO agencies that are here today are already grappling with. If you receive public funding for some part of your service which is public in nature, then that delivery needs to be compliant with the Charter rights.

It is important to understand the Charter is what is called a "statutory human rights instrument". It is a routine Act of Parliament rather than a paramount law - which is usually also a constitutional document. This is the type of instrument that operates in New Zealand (the Bill of Rights Act 1990), the United Kingdom (the Human Rights Act 1998) and the Australian Capital Territory (the Human Rights Act 2004).

This means that unlike a paramount instrument, it acknowledges the supremacy of a democratically elected Parliament in that it does not vest the judiciary with a power to strike down legislation that is interpreted as being inconsistent with human rights. The best known example of a paramount instrument is the United States Bill of Rights pursuant to which the courts have the final say on matters covered by the Bill of Rights and can declare inoperative, laws which although validly passed by the legislative arm of government, are found to be inconsistent. The Canadian Charter of Rights and Freedoms is also a paramount instrument in that it permits incompatible laws to be struck down, it is however mitigated by what is called the "notwithstanding clause", which permits the legislature to re-enact laws that have been struck-down, despite their being incompatible with Charter rights.

Basically governments, and in fact more generally the public, are concerned to maintain the balance of power between elected Parliaments and an unelected judiciary. Many earlier attempts to introduce a comprehensive human rights instrument have been fatally wounded by the perception they are anti-democratic in that they provide unelected judges with too much power. This actually remains a misunderstanding about how the Charter operates in Victoria.

Predictably, this gives us a public policy catch 22!. On the one hand if a statutory human rights instrument does not vest the judiciary with these types of powers, then people might ask - if the judiciary cannot strike down incompatible laws how is change and human rights compliance achieved? So the parliamentary sovereignty argument is used to gain support for a statutory human rights instrument by demonstrating it will not herald the death of Parliamentary / Westminster democracy, only to lose support by raising concerns that the instrument is a "toothless tiger".

How will the Charter achieve the greater respect for and realisation of human rights? In terms of the instruments that operate in New Zealand, the United Kingdom and the ACT - and what has been introduced in Victoria - these instruments adhere to what has been called the dialogue model of human rights compliance.

Simply put, this means:

Parliament - passes laws after subjecting them to human rights scrutiny. In exceptional circumstances, it can override the Charter and pass incompatible legislation. Parliament continues to have the final say on all laws.

The Executive - human rights standards built into all policy, legislation and practices. It provides human rights compatibility statements to Parliament, either demonstrating compliance or explaining the rationale for departures from human rights principles. Responds in Parliament to declarations made by the Supreme Court.

The Courts - where possible, interpret laws to be compatible with the Charter, however the Supreme Court can make declarations that are sent to Parliament if law is not compatible with Charter rights.

Even before the Charter was introduced, we saw evidence of how the Court may utilise the Charter in its own determinations;

In the case of Royal Women's Hospital v. Medical Practitioners Board of Victoria [2006] VSCA 85 the President of the Court of Appeal, Justice Maxwell, confirmed that the Court places significant value on international human rights law and that having regard to this:

the Court will encourage practitioners to develop human rights-based arguments where relevant to a question in the proceeding;
practitioners should be alert to the availability of such arguments and should advance them where relevant; and
since the development of an Australian jurisprudence drawing on international human rights law is in its early stages, further progress will involve judges and practitioners working together to develop a common expertise.

Justice Maxwell then identified three important ways in which international human rights law and jurisprudence may be relevant to the resolution of disputes under domestic law:

statutes should be interpreted and applied, as far as language permits, in conformity with international human rights treaties;
international human rights law may be used as a legitimate guide to the development of the common law; and
the provisions of an international human rights treaty to which Australia is a party may serve as an indicator of contemporary values and the public interest.

Public Authority Duty of Compliance

Public authorities (which can include private bodies performing public functions on behalf of government under contracts) are required to approach the execution of their functions - including the development of policies and actual performance pursuant to those policies - in a manner that is compatible with the human rights enshrined in the Charter. Compliance is promoted through the requirement that all decisions and actions be assessed for their impact on Charter rights.

There is significant educative value in being able to point to a clear and unambiguous obligation on the part of public authorities to conduct their affairs in accordance with human rights principles. This should result in the necessary processes, practices and way of thinking being assimilated more quickly within agencies given that they would be more cognisant of their obligations under the Charter.

The practical importance of this cannot be overstated. The public sector duty will be one of the primary drivers of systemic change and improvement in human rights compliance. When an understanding, awareness and incorporation of human rights requirements has permeated all aspects of public administration then the Charter will have started to realise the promotion of the culture of human rights that I referred to earlier.

Can I seek redress?

The Charter will not, however, allow a complaint to be made about the breach of the rights contained in it. The exception is the Ombudsman who can handle direct complaints when a public authority falls under his jurisdiction. Generally however, it will not operate like the Equal Opportunity Act where complaints can be made.

Consideration of Charter breaches will be absorbed into existing actions or mechanisms, (for example general administrative law proceedings in relation to administrative decisions and actions, complaints to the Ombudsman regarding administrative conduct, or complaints to other bodies such as the Privacy Commissioner or Health Services Commissioner). This means that a breach of the Charter should not of itself give rise to an independent cause of action or entitlement to damages. Potentially, the absence of an independent course of action will mean that policy, legal and client advocates will have a significant part to play in achieving systemic change through other means - particularly their engagement in policy and legislative policy development processes. The Charter will provide a powerful new tool with which to leverage social change and ensure human rights compliance.

Human Rights Compliant Legislation

All of our laws will have to be tested against the rights that are contained in the Charter.

Ministers and government departments will develop their legislative platform in such a way that bills and statutes comply with the human rights enshrined in the Charter. At the time a bill is presented to Parliament the Minister will make an accompanying declaration of compatibility between the bill and the Charter. The issue of compatibility is also reviewed or investigated by a Parliamentary Committee - in Victoria this is the Scrutiny of Acts and Regulations Committee.

Compliance can be asserted on one of two bases. The more straightforward is that the bill simply accords with, or does not impact on human rights. The more complicated scenario is where a bill infringes on human rights, but the infringement is deemed reasonable and permissible. An assessment of whether a particular infringement is reasonable and not arbitrary - it is governed by the human rights instrument itself. All such instruments recognise that most (but not all) rights can be limited where it is demonstrably justified, which requires consideration of the right itself, the importance and purpose of the limitation, the nature and extent of the limitation, the relationship between the limitation and its purpose, and the availability of less restrictive means to achieve the purpose. (Reference to Meiorin.)

The second dimension of human rights compliant legislation is that insofar as the intention or purpose of a particular statute permits, courts and tribunals are required to interpret and apply its provisions in accordance with human rights - in other words where two interpretations of a legislative provision are possible, the interpretation that promotes human rights is to be preferred.

In addition, superior courts - in the case of Victoria the Supreme Court - are vested with the power to make a declaration of incompatibility. Such a declaration or notice can be issued when it is not possible to interpret a legislative provision consistently with enshrined human rights. The declaration does not affect the validity or operation of the legislation, rather, it is referred to the Attorney-General and a response is made by the executive.

In deference to the supremacy of Parliament, Parliament is able to pass legislation that includes override declarations. Override declarations acknowledge that a bill or Act contains provisions that breach human rights, but stipulate that it is the intention of Parliament that this should be permitted. Where there is an override declaration in place the Supreme Court is unable to make a declaration of incompatibility, and actions by public authorities that are authorised by the override provision cannot be regarded as a breach of the Charter. Generally, override declarations can only operate for a fixed and maximum period of time (in Victoria the proposed period is 5 years) however there is no limit on the number of times Parliament can re-enact an override declaration.

Is it worth reiterating that the Charter stipulates overrides are only intended in exceptional circumstances. This provides something of an additional safeguard in that it will force the Parliament to justify and defend it's decision to breach human rights.

WHAT RIGHTS ARE PROPOSED FOR INCLUSION IN A VICTORIAN CHARTER AND WHAT IS THEIR PRACTICAL RELEVANCE?

The suite of human rights are:

the right to life and freedom from torture, cruel, inhuman and degrading treatment.
rights to equality before the law and non-discrimination in the enjoyment of other civil and political rights.
protection of family, children and minority cultures.
freedom of movement, thought, assembly and expression; and
protections when deprived of liberty and otherwise involved in the legal system.

Obviously we live in a relatively healthy and robust democracy that has a comparatively sound record of respecting human rights. When we look at the list of civil and political rights their practical relevance may not jump out. For example issues relating to torture, cruel, inhuman and degrading treatment may not resonate as common or real issues for the Victorian community. For the sake of illustration I wanted to examine a sample of those rights, and drawing from the experience of other jurisdictions, highlight the broad range of day-to-day public administration issues on which they can potentially impact.

Right to life

the withholding or withdrawing of medical treatment or care of any person, or the provision of palliative care;
the use of force by law enforcement officers, including the use of weapons in the course of their duties;
the criminal defences of self-defence, provocation, or insanity;
the delivery of medical resources for acute patients; and
the management of individuals living in public care.

Protection from torture, cruel, inhuman or degrading treatment

increasing the size or range of penalties for offences or creating new offences and penalties;
use of disciplinary measures in schools and detention centres;
the operation of places of detention and conditions under which individuals may be detained;
the authorisation of searches of persons; and
the treatment of people in public facilities such as involuntary mental health services.

Protection of family and children

regulation of the obligations of people towards each other as part of a family or parents and guardians toward children;
provisions governing the separation and removal of children from parents or guardians or other adults responsible for their care and access to children removed from the family; and
actions affecting the welfare of children within the family or in the care of public authorities.

Privacy

authorisation of the entry of officials from government agencies or law enforcement officers onto commercial and/or residential property;
authority for the conduct of searches of a person or personal belongings, whether that person is held in custody or not;
requirements that individuals disclose documents, records and other forms of information; and
authorisation of law enforcement officers to stop vehicles and question occupants, or take fingerprints, blood samples and samples of bodily tissue.

Taking part in public life

limits on the ability of classes of individuals to take part in general elections;
requirements that individuals meet certain conditions in order to be eligible to participate in elections;
regulations regarding how individuals are able to vote in a general election;
regulations of access to employment in the public service or appointment to public office.

It is probably fair to say there is little in the way of governmental conduct that is not potentially impacted by, or at least needs to occur within an awareness of the civil and political rights that are proposed for the Victorian Charter. In this context, over time it is likely to exert a considerable influence on the day to day life of citizens - even where that influence is not obvious.

What does all of this mean for People with Alcohol and Drug Addiction?

The Charter is intended to safeguard the human rights of all Victorians, but its effects will be most keenly felt by the marginalised and disadvantaged within our community. I don't need to tell you that those addicted to substances, and their families, are all-too-often amongst this group.

Many of the human rights issues implied for AOD users relate to economic, social and cultural rights - for example access to adequate standards of healthcare, housing, income, and employment. The relationships between substance use and social and economic disadvantage are both multiple and complex.

However, there are also clear links to the civil and political rights contained in the Charter - for example freedom from discrimination, right to life, freedom from cruel, inhuman and degrading treatment, freedom from medical treatment (at times) without full, free and informed consent, issues of privacy and reputation, freedom of expression, protection of families and children, liberty and security of person, and rights in criminal proceedings.

Victorian AOD policy is driven by a harm minimisation approach, encompassing demand reduction, supply reduction, and harm reduction. The Charter requires within each element of harm minimisation, that public authorities ensure all policies and procedures are underpinned by human rights principles, and that these are applied to all people.

A human rights consistent approach to harm minimisation might also require ensuring an appropriate balance between it's various arms. Many AOD advocates have criticised what they see as an imbalance in the resources devoted to prevention and treatment responses to AOD use, as compared to legal responses.

There is little doubt that AOD use is often closely linked with participation in illegal activities - whether through the actual use, trafficking or supply of illicit substances, undertaking certain activities while under the influence of AODs (for example drink or drug driving), or engaging in criminal behaviour to support costly habits. AOD use can and occasionally does lead to violent behaviour (both public and private), claims of public nuisance and drunkenness.

The close association between AOD use and the law is an excellent example of how we have to remind ourselves that human rights are for all people!

Yet AOD advocates may claim greater investment in provision of prevention, treatment and education, for example, are far more human rights compliant approaches than supply and demand reduction approaches often linked to criminal sanction. Human rights compliance requires we don't use a "sledgehammer to crack a nut".

How best to respond to issues arising from AOD use is of course, a hotly contested issue, especially in relation to criminal activity. Human rights compliant responses require that an appropriate balance be struck between competing rights and competing interests.

How do we for example, strike the best balance between:

a perpetrators right to a fair and accountable criminal justice system, with the victim of crime's right to security of person and safety with the,
the AOD using parent's right to parent, with the child's right to life and family
the individual's right to privacy with the right to a safe workplace or school when it comes to drug testing

Many would go as far as to assert the very illegality of much AOD use or related-behaviour removes the "perpetrator's" right to any rights at all. For them, AOD use, addiction and/or participation in criminal behaviour is an active choice through which AOD users rescind many of the rights they might otherwise have legitimately laid claim to. Those focussed on the physical and psychological effects of addiction, a more medicalised approach, might argue the substance addiction is far from a choice and is largely beyond the individual's control. So too those concerned with broader systemic issues relating to adequate housing, income, employment, education, health care and capacity to participate - each of which is a human right in itself, and all of which are over-represented socio-economic indicators of disadvantage present in the lives of many substance users.

As advocates for the human rights of AOD users we must strive for policy responses that effectively address the root causes of substance addiction. By ensuring human rights objectives are met through consistent, appropriate and stream-lined access to resources, support and information, more substance users might avert the need to have their human rights safeguarded within the criminal justice system.

A specific examples of recent moves to wind back human rights for AOD users can be seen in the implementation of CBD curfew around Footscray, preventing those charged with AOD offences from accessing the area on fear of arrest. Such a blanket approach has clear implications for freedom of movement and association, perhaps also in relation to arbitrary arrest. In addition, exclusion from an area in which many AOD services are located restricts these individuals' right to access treatment and support options, perhaps adding to their risk of re-offending. There are now clear obligations on government departments as public authorities to ensure human rights of all service users are upheld and maintained.

There is now a challenge for you as service providers to follow the lead of organisations with a commitment to ensuring the highest possible standards of care for their AOD clients.

I should take this opportunity to commend VAADA for its consistent focus on the human rights of AOD service users, and to organisations such as APSU (Assoc of Participating Service Users) for their work in developing a service charter of rights to ensure clients rights are upheld.

What about the Victorian Equal Opportunity and Human Rights Commission?

The Commission is a human rights body, operating within the state of Victoria, with the following functions:

an impartial and free complaints service for those people who feel they have been subject to discriminatory behaviour;
Education, training and consultancy services in equal opportunity;
Community education in human rights;
Projects, campaigns and research which aims to reduce discrimination in all areas of activity in the Victorian Community;
Reporting on the performance of the Victorian Charter of Human Rights and Responsibilities and also reporting to the Parliament on the performance of the Commission in seeking to fulfill its functions;
Intervening in any application to seek exemption from the requirements of the Equal Opportunity Act 1995.
From January 1, 2008, the Commission will have the power 'to intervene, and may be joined as a party to, any proceeding before any court or tribunal in which a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter'

The Commission has a number of specific functions coming up which include:

Human Rights workshops for community organizations in your local
youth forum looking at human rights on Monday 26th February 2007.
human rights conference on Tuesday 27th February 2007
ambassadors program that we will be developing this year looking for local human rights ambassadors.

We are very excited about what is ahead of us in terms of promoting these civil and political rights and working with community groups to develop an understanding of how they may be applied.

Amongst all the optimism surrounding the Charter there is a need to highlight what may be a self-evident warning - the Charter is not an outcome it is an instrument. The Charter provides an armoury of formal and informal mechanisms to promote human rights and realise the benefits associated with this. However, it is up to government in all its forms and the community to understand and meaningfully employ these mechanisms, otherwise the Charter will amount to little more than rhetoric. Critical to this is the need to inform the general community so it understands the relevance of human rights, and becomes genuinely disturbed by policies and practices that are non-compliant. Arguably this is the most significant challenge facing all those who are engaged in the Charter's implementation.

Of course a human rights culture depends on more than the conduct of government. Its emergence or demise is also significantly influenced by how individuals view and relate to each other. A range of contemporary issues call into question just how sincere and embedded our community's perceived commitment to a "fair go" actually is. If the Charter results in government leading by example, and thereby demonstrating to the community that human rights are important, that they belong to all and their promotion enriches everyone, not just a few, that may well be government's most important and enduring contribution to the health and well-being of our community.

These rights define a standard, and expectation and a way forward. We look forward to travelling that journey with you all.

Thank you to Jason Rostant, VEOHRC Human Rights Educator and Matthew Carroll, Manager of the VEOHRC Human Rights Unit for their assistance with aspects of this speech.