Achieving the Rights Outcome4
Application to Specific Areas
Generally, whenever you are engaging with a Public Authority, pointing out the human rights implications will enhance your advocacy. This shouldn’t stop you utilising any other legislation or policy you would otherwise use to advocate. More information on the basics of advocacy are in Attachment A. Human Rights arguments may be made in many areas of service provision. Below are some examples in various subject areas.
Accommodation, Housing and Entering Someone’s Home or Room
|Separation of families e.g. child protection, care home placements||Right to Family
Rights of Children
|Personal and sexual relationships in a community-based facility||Right to PrivacyRight to Equality|
|Private and personal information collected by housing provider||Right to Privacy|
|Restrictions on making personal choices and decisions in a community-based facility||Right to PrivacyRight to Equality|
|Access to social and recreational activities||Freedom of AssociationFreedom of Movement|
|Participation in community life||Freedom of AssociationFreedom of Movement|
|Independent living||Right to PrivacyRight to Equality|
|Monitoring and surveillance of community-based facility||Right to Privacy|
|Closures and evictions involving community-based facilities||Right to PrivacyRight to Equality|
|Eviction without reason||Right to Fair HearingRight to Privacy|
|Protection from abuse and neglect (including domestic violence)||Right to EqualityFreedom from inhuman treatment|
Family life covers close and personal ties of a family kind. It does not just cover blood ties or formal relationships and goes beyond the so-called ‘nuclear family’.. It includes a right to develop normal family relationships and the right to ongoing contact if a family is split up
This right is a qualified right. It can be limited or restricted in certain circumstances to protect the rights of others or the interests of the wider community. For example, a child may be separated from their parents if there is evidence of child abuse. Any interference with this right must be lawful, necessary and proportionate.
Rights of Children in Accommodation
This protection extends to any person aged under 18 years of age. Although it is not specifically recognised in the HRA, the right to protection of children and young people could be interpreted to include a broader range of children’s rights recognised in the Convention on the Rights of the Child, including the right to participation. Public Authorities must adopt special measures to protect children and young people, and the best interests of the child must be taken into account in all actions affecting a child.
Case example (rights of children and right to family life)
Here in the ACT, a woman who lived in public housing with her mother and children was threatened with eviction when her mother (the children’s grandmother) died, as the property was held in the grandmother’s name. Using human rights arguments centred on the rights of the family, she successfully argued that she should remain in the house because her children were settled in the community and local school.
Right to Privacy in Accommodation
This right includes not to have one’s privacy, family, home or correspondence interfered with unlawfully or arbitrarily. Private life includes privacy, personal choices, relationships, physical and mental well-being, access to personal information and in some circumstances, participation in decision making. Home can include institutions if a person has lived there for a significant period of time. However, it does not extend to a right to new housing, rather regarding the home a person already has. Correspondence covers all forms of communication including phone calls, letters, faxes and emails.
Case example (rights of children, privacy and family life)
A local non-government organisation provided crisis accommodation for fathers and their children. The father had applied, with the support of the provider, to apply for public housing but was over the income threshold to be eligible for priority housing. He was facing a 12 month wait to obtain housing. Nonetheless, the organisation felt they had to evict him because the premises were needed for other families experiencing housing difficulties. The organisation applied to the ACT Civil and Administrative Tribunal to evict him. The Tribunal concluded that the non-government organisation serving a notice to vacate on the man constituted an interference with the family unit and arbitrary interference with a home which was not subject to appropriate limitations, and was therefore unlawful. As a result of this unlawful act, ACAT had no jurisdiction to consider the application for a termination and possession order.
Case example (right to fair trial, privacy and family life)
The Director of Housing applied for a possession order to evict a family living in public housing. The application was based upon alleged breaches of a compliance order. Eviction would have had serious negative effects on the family, including risk of homelessness. His legal service requested evidence of the breaches from the Department of Housing (DOH) but they refused, stating that it would be provided at the hearing. Consequently, Homeless Persons Legal Clinic (HPLC) submitted at the hearing that the DOH had breached the right to a fair hearing under the Charter by failing to provide the requisite evidence. Further, they argued that the DOH had not considered the family’s right to privacy and reputation and the protection of families and children under the Charter when applying for the order. The Tribunal adjourned the hearing until the evidence was produced. DOH withdrew the application for possession and agreed to negotiate with the family to determine a more appropriate solution.
Source: Homeless Persons Legal Clinic: Submission for Review of the Victorian Charter of Human Rights and Responsibilities Act 2006.
Right to Equality in Accommodation
Everyone has the same rights and deserves the same level of respect. This means that laws, policies and programs should not be discriminatory and also that public authorities should not apply or enforce laws, policies and programs in a discriminatory way. The section includes some examples of discrimination. These include, discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.
Case example (right to equality, privacy)
Action for More Independence and Dignity in Accommodation (AMIDA), along with Tenants Union Victoria (TUV) used the Charter in a Victorian dispute to protect the rights of a tenant with an intellectual disability who had been given a notice to vacate based upon his behaviour at a rooming house. The tenant’s behaviour had been as a consequence of his disability. Use of the Victorian Charter of Rights enabled AMIDA and TUV to open up discussion with the landlord as to his/her obligations as a Public Authority. Consequently, the landlord was able to consider the Charter and agree to an alternative course of action, which upheld the obligations contained within it. The final agreement meant that the tenant could occupy the premises for a period of 6 months while looking for alternative accommodation, so long as his behaviour was appropriate during this time. At the end of the 6 months, the tenant had not been in breach of any house rules and the landlord allowed for him to remain in the premises.
Source: Action for More Independence and Dignity in Accommodation: Submission for Review of the Victorian Charter of Human Rights and Responsibilities Act 2006.
Case example (right to equality, freedom from inhuman treatment)
A tenant of the Office of Housing was expected to report maintenance items, however was unable to do so because of his vision impairment, limited mobility and physical disability. The contractors who were engaged to complete the works requested that the tenant sign a worksheet to state that the work had been completed in accordance with the Office of Housing’s requirements. The man was unable to verify that this was the case, due to his vision impairment. The advocate invoked the right of freedom from torture and cruel, inhuman and degrading treatment to in order to successfully reverse the policy that requires persons with vision impairment to sign a works order.
Source: Disability Justice Advocacy: Submission for Review of the Victorian Charter of Human Rights and Responsibilities Act 2006
Case example (right to equality)
A man living with cerebral palsy and vision impairment was suffering great anxiety with regards to security in the housing commission where he lived. He requested the addition of a mesh screen to his door, offering to pay for it. This was rejected by the Community Housing Authority without reason. The advocate contested the decision on his behalf raising rights under the Charter. In particular, it was stated that the screen would not only assist with security but would also give him more privacy in his home. In response the community housing authority decided to arrange for the screen within two weeks.
Source: Leadership Plus: Submission for Review of the Victorian Charter of Human Rights and Responsibilities Act 2006.
Closed Institutions Operated by Public Authorities including Hospitals, Mental Health Facilities, Etc
When a person is in some form of formal, closed-door state care, whether a detention centre, health facility, or community-based, a number of scenarios can raise human rights issues including:
|Euthanasia||Right to Life|
|Do Not Resuscitate orders (DNR)||Right to Life|
|Provision of life prolonging/saving treatment||Right to Life|
|Advance Directives/living wills||Right to Equality|
|Deaths through negligence||Right to Life|
|Inquests||Right to Life|
|Access to news and connection with community, particularly for those in detention||Right Humane Treatment in detentionFreedom of Expression|
|Separation of family within an institution||Right to Family|
|Washing or dressing without regard to dignity||Freedom from inhuman treatment|
|Excessive force used to restrain people||Right to Humane Treatment in DetentionFreedom from inhuman treatment|
|Unsanitary conditions/lack of access to sanitary facilities||Right to Humane Treatment in DetentionFreedom from inhuman treatment|
|Inability to move around, and to leave a facility||Right to LibertyFreedom of Movement|
Right to Family in Institutions
This can be relevant where two members of the same family are separated in institutional care.
Case example (right to family life)
A husband and wife had lived together for over 65 years in the United Kingdom. He was unable to walk unaided and relied on his wife to help him move around. She was blind and used her husband as her eyes. They were separated after he fell ill and was moved into a residential care home. She asked to come with him, but was told by the local authority that she did not fit the criteria. A public campaign launched by the family argued that the local authority had breached the couple’s right to respect for family life. The authority agreed to reverse its decision and offered the wife a subsidised place so that she could join her husband in the care home.
Source: The Human Rights Act – Changing Lives (British Institute for Human Rights, 2008)
Right to life in Institutions
The right to life is one of the most fundamental human rights, and has two main aspects. Public authorities must:
not take away anyone’s life, except in a very few limited circumstances. These are to defend someone from unlawful violence; to arrest someone or stop them escaping; or to suppress a riot.
take reasonable steps to protect life. This includes taking steps to protect someone whose life is at risk from another person, where the authorities know or should know of this risk.
The positive steps to protect the right to life include:
- to establish a framework of laws, precautions and procedures that will protect life;
- to warn people about life-threatening hazards that the government knows or should know about (such as fires or chemical spills);
- to take steps to protect the life of people within its care and control (in places such as prisons, detention centres, medical facilities or state care);
- to investigate deaths which may have involved an arbitrary deprivation of life involving a public authority; and
- to account for resource allocation, particularly public health authorities.
Case example (right to life)
A woman was discharged from a mental health hospital in London before she felt ready. She had suicidal tendencies and was anxious about a delay in arranging a follow-up care review meeting. Her advocate used the right to life to argue that her care and treatment team was under a positive obligation to protect her life by ensuring she had the support she needed. She was initially supplied with a support worker once a fortnight, but as a result of these arguments, it was agreed to increase this to once a week.
Source: Cambridge House Advocacy in ‘The Human Rights Act – Changing Lives’ (British Institute for Human Rights 2008)
Prohibition of torture, inhuman or degrading treatment
Torture generally refers to the deliberate infliction of very severe pain or suffering. This can include acts that cause both physical pain and mental suffering. It is also often interpreted to require the act or authorisation of a public official for purposes such as interrogation, threat, punishment or some other purpose.
Cruel, inhuman or degrading treatment or punishment, is a broader concept than torture. This generally refers to treatment that is less severe or does not meet the technical requirements of the torture definition, but that still involve abuse or humiliation. Examples of cruel, inhuman or degrading treatment include acts carried out by police using excessive force or unduly prolonged detention that causes mental harm. The assessment of whether something falls within this category will depend on the circumstances, including the duration and nature of the treatment and its impact on the victim.
The scope of degrading treatment can include forcing people to perform acts which humiliate them or gravely offend their sensibilities – especially in public – as form of punishment.
The United Nations Committee on the Rights of the Child has also criticizsed Australia for continuing to provide a defence of ‘reasonable chastisement of children’ to charges of assault arising from corporal punishment by parents. The UN Convention on the Rights of the Child obliges governments to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence.
Case example (freedom from torture, inhuman treatment)
In Davies v State of Victoria  VSC 343 (15 August 2012), the Supreme Court of Victoria found that the treatment of a resident with disabilities, who was dragged naked along a hallway in a Community Residential Unit, was cruel and degrading and contrary to section 10(b) of Victoria’s Charter of Human Rights and Responsibilities – the equivalent to the Human Rights Act 2004 (ACT)
Case example (freedom from torture, inhuman treatment)
A larger woman in a residential care home had not showered or bathed for many weeks. The care home had been providing her instead with a ‘strip’ wash so that staff did not have to lift her. The woman was very upset about the situation. After receiving BIHR training, her advocate wrote to the care home and the local authority, challenging this as a breach of her right not to be treated in an inhuman or degrading way. Within days a new occupational therapist was brought in to explore options and it was quickly agreed that a hoist could be used. From this point onwards the woman was able to take a bath or shower according to her wishes.
Source: Human Rights in Action: A Toolkit for Change, British Institute for Human Rights (BIHR)
Right to liberty
The right to liberty means that persons must not be subject to arrest and detention, except as provided for by law. Their arrest and the detention must also not be arbitrary. This right applies to all forms of detention where people are deprived of their liberty, not just criminal justice processes. This can be relevant any time a person is not free to leave a place by his or her own choice.
Case example (right to liberty)
A man in a mental health hospital was repeatedly told by nurses that he could not leave the ward, even though as an informal patient he was entitled to do so. He was not detained under the Mental Health Act, so should be free to leave at any time. His advocate made a written complaint on his behalf arguing that his right to liberty had been breached. Subsequently his treatment by the nurses greatly improved and he was permitted to leave when he wanted to. He was discharged from hospital soon afterwards.
Source: The Human Rights Act – Changing Lives’ (BIHR 2008)
Freedom of Movement
This rights means that people have the right to move freely within the Australian Capital Territory, to enter and leave the ACT, and have the freedom to choose where to live. In the ACT today, this right is relevant in circumstances involving people’s access to public spaces, laws relating to trespass, and court orders (such as restricted bail orders) and powers to direct people’s movements in times of emergency.
Case example (right of movement, right to liberty)
A man living in an ACT residential aged care facility uses a wheelchair to move around. The facility were very concerned that he was a danger to himself and others when he used the chair so they removed the battery from his chair so that it would not work. The advocate argued that this was a breach of his right to freedom of movement and the battery was returned to him. The advocate worked with the facility and the man to find other, less restrictive, ways to ensure that he was able to move about freely but safely, this included some support around safe use of footpaths so that he could go from his home to the local shops when he wanted to.
Protection of Particular Groups
Special protections are also provided for particularly vulnerable groups including People With Disability, Children and Young People, those from a Culturally and Linguistically Diverse background and People with Disability.
Case example (right of children and young people)
Fitzroy Legal Service (FLS) has protected a young girl from having to testify against her alleged perpetrators in a criminal trial. The young girl and her family believed that testifying and being cross examined would cause her serious harm. FLS advocated in favour of her choice not to testify and was successful in doing so. They achieved this by raising section 17 of the Charter, which enshrines the protection of families and children. They argued that protection of her rights as a child and protection of the family should be given due regard when determining whether or not the young girl would be required to provide witness testimony. The Tribunal agreed that she should not testify and consequently provided her with financial assistance in recognition of the trauma suffered by her.
Source: Fitzroy Legal Service: Submission for Review of the Victorian Charter of Human Rights and Responsibilities Act 2006.
Case example (right to equality, rights to family)
A single mother living with cerebral palsy was at risk of having her daughter taken from her by Child Protection. She needed to demonstrate that with the appropriate assistance she would be competent, both emotionally and physically, to care for her daughter. The advocate in this case used the Charter principles to communicate the woman’s rights to Child Protection through mediation in the Children’s Court. These rights included recognition and equality before the law and protection of families and children. Consequently, the woman was able to demonstrate her capability of mothering her child and Child Protection are no longer involved.
Source: Leadership Plus: Submission for Review of the Victorian Charter of Human Rights and Responsibilities Act 2006
Case example (right to equality, rights of children and young people)
A male student with a learning disability was threatened expulsion by his school due to his behavioural issues. The advocate outlined to both the school itself and to the Department of Education and Early Childhood Development the student’s relevant human rights. As a result of the communication, the boy was provided with the supports, which reduced his behavioural issues and consequently, he was allowed to stay on at the school.
Source: Youth Affairs, Council of Victoria: Submission for Review of the Victorian Charter of Human Rights and Responsibilities Act 2006.
Case example (right to equality)
A recipient of Home and Community Care services was unable to speak or understand English and was provided with a support worker who was unable to communicate with him in his own language. The council would also not pay for an interpreter to assist with the care services. During negotiations with the council, the advocate raised the Charter. As a consequence, a support worker from the same cultural and lingual background was appointed by the council.
Source: Disability Justice Advocacy: Submission for Review of the Victorian Charter of Human Rights and Responsibilities Act 2006.
More information on Rights
More information is provided on these rights throughout this guide, and on the ACT Human Rights Commissioner’s website. They are drawn from the:
- Universal Declaration of Human Rights;
- International Covenant on Civil and Political Rights; and
- International Covenant on Economic, Social and Cultural Rights.