A HUMAN RIGHTS

BASED APPROACH

Implications of the Victorian Charter of Human Rights and

Responsibilities for VAADA
 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
Human Rights are more than
Values and behaviours
that we think other
countries don’t hold or
implement, so we often
claim they don’t value
Human Rights as well as
we do
Services and facilities of a public
nature affect human rights
Public decisions do
HUMAN RIGHTS in a nutshell
1. Belong to everyone – they can’t be taken away from marginalised
individuals

2. Are about the relationship between the state and individuals

3. Provide a floor, not a ceiling, of basic standards, below which the state
must not fall and which it must protect or fulfil

4. KEY PRINCIPLES:
– Fairness
– Respect
– Equality
– Dignity
» In a democratic society
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 Rights
Resp parliam
onsi ent
make them work in Victoria biliti
es
liabilit Statutes
Local
y
laws
old
When? ways How?
of
doing
things
Case Study 1 – Darlene’s little
problem
What are the human rights issues in
this case?

How might they be used to help

Darlene?
Darlene’s little problem
Darlene is receiving unemployment benefits but keeps being cut off by
Centrelink for non compliance. She had been sacked from her last job as
an aged carer when the manager learned, through malicious gossip
passed on by one of her co-employees, that Darlene was on a
methadone program.

Now she can’t find the resources to pay for her prescriptions; the doctor who
had been her prescriber has retired and there’s no other provider within
cooee of her home in rural Victoria, and it seems that the clinic she
wanted to attend is probably going to close down.

What human rights issues are involved in this issue? What steps could you
take to help her deal with these issues?
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
•Protection of families and children
• As a person;
• without discrimination; •Taking part in public life
• To equal protection of the law;
and •Cultural rights
• special programs for
•Property rights
disadvantaged are permitted
•Life •Right to liberty and security of person
•Protection from cruel, inhuman or
degrading treatment •Humane treatment when deprived of liberty
•Forced work •Children in the criminal process have
•Freedom of expression special rights
•Peaceful assembly and freedom of
•Fair hearing for an accused criminal
association
•Freedom of movement •Rights in criminal proceedings
•Privacy and reputation
•Right not to be tried or punished more than
•Freedom of thought, conscience, religion once
and belief
•Retrospective criminal laws not allowed
How the Charter works
• Parliament intends to establish a culture of respect for Human Rights in
Victoria

• Statements of compatibility must be made in parliament when laws are

introduced

• Parliament may override application of human rights in exceptional

circumstances*

• Existing laws must be interpreted to be compatible with the Charter

wherever possible

• All Public Authorities must act compatibly with the Charter

• Supreme Court can declare statutes incompatible, direct minister to

amend them

Parliament remains supreme in determining whether to pass or retain

legislation incompatible with the Charter principles.
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
THE CHARTER PROVIDES A human right can
be limited

such reasonable limits as can be demonstrably justified in a

free and democratic society based upon human dignity,
equality and freedom and taking into account all relevant
factors:
• The nature of the right

• The importance of the purpose of the limitation

• The nature and extent of the limitation

• The relationship between the limitation and its purpose

• Any less restrictive means reasonably available to achieve

the purpose that the limitation seeks
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?
Some UK Cases
R v Enfield London
Borough Council 2002
Local authority may have
a duty to take positive
steps to secure a disabled
person’s physical integrity
and dignity, even if it had
the right to evict him.
Robertson v Wakefield
Metropolitan Council
2002
Public authorities must
ensure their decision
making processes take
into account individuals’
human rights – they may
be forced to do them all
over again if they didn’t!
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
And . .
Challenging brutality
A mentally ill young man placed in residential care for treatment was found bruised by
his parents, who raised the issue with the managers and felt their concerns were
dismissed, and their visiting rights were then removed. The parents challenged this
on the basis of their son’s right not to be treated in an inhumane and degrading
way and respect for family life.
Positive steps to protect human rights
A social worker used human rights language to get accommodation for a woman and
children fleeing from a violent prtner. She argued the housing authority had a
positive duty to protect them from inhumane and degrading treatment and to
protection of their lives.
Another social worker managed to invoke a local authority’s positive obligation to
protect a man suffering from panic disorder to get them to issue him with a bus
pass, because he could not use public transport effectively – i.e. had to get off the
bus every few minutes to calm down
And particularly
Using human rights to get resources
An advocate successfully argued that an aged woman with mental illness and
disturbed behaviour while in hospital for treatment should not be moved from the
hospital and put into residential care against her wishes, on cost grounds, because
she had the human right to privacy and choice, and so resources were found to
support her care at home, where she wanted to live.

A disabled woman’s payments were reduced to the point where she could no longer
afford a personal assistant to help her with toileting, leading to aggravation of her
serious kidney condition.
Challenging blanket policies
The education authority policy provided school transport for children with special needs
who lived more than 3 miles from school and refused to provide it to a child living
2.8 miles away, unable to travel independently. This was successfully challenged
on the basis of its being a disproportionate interference with the child’s right to
private life
Create your own case study
SO WHAT SHOULD YOU DO?
1. Adopt a Human Rights Based
Approach to services
• If you are contracted/funded to provide a ‘government service’, you may
be a ‘public authority’ yourself, for those functions, and need to comply
with the Charter
• Every employee in your service needs to understand Charter Rights and
how they work
• Breaches of charter considerations may mean public decisions or actions
can be challenged as unlawfully made, and at the very least, should be
remade
• Can’t ‘sue’ over breach of a Charter right, but can lobby, argue and utilise
existing laws and e.g. ombudsman, internal review processes, VCAT, anti
discrimination laws,
• VEOHRC can intervene in legal action, review (by invitation) a public
authority, and must report on the first four years of the charter’s
effectiveness
2. A HRBA to our work
• Claim human rights as a tool for social change and in
our own work
• Use human rights arguments while having a central
voice in policy debates
• Use HRBAs in our own work and partnerships
• Prioritise human rights in our work, raising
awareness and capacity – how can issues we work
on relate to human rights issues
• Identifying human rights principles we already work
to
• Work in dialogue and partnerships to raise
awareness and use of human rights tools to
influence and challenge discriminatory assumptions
about our clients
3. Use a checklist for action
1. FRED. Does this situation raise human rights issues?
2. What specific human rights are affected?
3. Who owns those rights?
4. Who or what is responsible for respecting and considering those rights?
5. Has the responsible decision-maker considered those rights having regard
to due process?
6. If the human right has been limited by the decision-maker, is the limitation
Reasonable.
– Demonstrably justified in a free and democratic society based upon
human dignity, equality and freedom? and
– did it take into account all relevant factors?
• The nature of the right
• The importance of the purpose of the limitation
• The nature and extent of the limitation
• The relationship between the limitation and its purpose
• Any less restrictive means reasonably available to achieve the
purpose that the limitation seeks ?
4. Use Charter Opportunities
Set the agenda – don’t accept decision makers’
preferences e.g. about allocation of resources

Integrate equal opportunity laws and human rights

agendas to impact the largely untouched rights of drug
and alcohol affected human beings and their families

Build partnerships and capacities of those working to

tackle social exclusion and inequality to use HRBAs in
their work
RESOURCES
Victorian Equal Opportunity and Human Rights Commission
website www.humanrightscommission.vic.gov.au

Human Rights Law Centre

website www.hrlrc.org.au

The Victorian Charter of Human Rights and Responsibilities can be

downloaded from this site or from www.austlii.edu.au

British Institute of Human Rights report, The Human Rights Act – Changing
Lives. Website www.bihr.org.uk