Achieving the Rights Outcome8
Attachment A: Preparing to Advocate
Advocacy is about improving an individual, or group of people’s circumstances, using human rights arguments. Advocates can be lawyers, professionals working for an organisation or individual citizens, like friends, relatives and co-workers.
The ACT Human Rights Act makes it possible for anyone to challenge public services and policies to improve them for one person, or everyone in our community. This can include:
- self-advocacy – standing up for yourself
- individual advocacy – standing up for someone else’s rights
- systemic advocacy – if you are trying to change a system to address the structural causes of inequality.
The core values of human rights, such as equality, dignity, autonomy and respect are also central to principles of advocacy and advocates.
Utilising human rights arguments in advocating for someone else will usually involve. This adapted from a number of sources, including the UK Equality and Human Rights Commission’s ‘Action of Advocacy’ document available at http://www.equalityhumanrights.com
If you are advocating on behalf of someone else, you should respect their autonomy and confirm they are comfortable with your proposed advocacy. You should consult with them about whether they would prefer to be supported to take action directly themselves. Have this conversation with them several times as the advocacy progresses – so that you can be sure that the advocacy steps you are taking are the ones that they want you to take and that you are representing the them in the way they want to be represented
- What human rights issues are there in relation to issue? Can you identify specific human rights that might be engaged by the decision or action? Detail information on every right under the HR Act is available at http://www.hrc.act.gov.au/
- Has the public authority considered human rights before an action or decision?
- If you are advocating on behalf of someone else, have you discussed the human rights issues with them? What is the best way for you to communicate with this person?
- Is the Public Authority making assumptions about how best to communicate with you or the person you are advocating for?
- Are there further supports you need? See the below list of organisations that can assist
- What expectations do you, or the person you are advocating for, have for a reasonable outcome from speaking to the Public Authority about this issue?
- How does the action or decision relate to the law? If a human right is limited, the first question to ask if whether the organisation can identify an ACT law that permits such action.
- If there is a law that permits a human right to be limited, is the Public Authority obliged to act in a particular manner, or do they have some discretion?
- Is the organisation interpreting the legislation in a way consistently with human rights (which is also a requirement of the HR Act).
- If there is discretion, does the organisation have policies or procedures that cover this? Ask to see documentary basis for the decision and then assess if the decision or action is consistent with this policy. If it is not, you can point this out, and if this fails, could consider making a complaint to an external body, like the Ombudsman, if the agency refuses your request to comply with that policy.
- If the policy or procedure is inconsistent with human rights, or one doesn’t exist, ask the organisation to demonstrate how the action or decision is a proportionate limitation on that right.
- What resources do you have to take this issue on? How far are you willing to progress? Have you considered the costs of any subsequent legal advice or action, to determine if offers made by the Public Authority along the way may be a reasonable compromise?
- You might consider drawing up an action plan for how you will approach these issues.
- If you are advocating on behalf of someone else, have you discussed with them the best way for you to communicate with one another?
- What is the best way for you to communicate with the Public Authority?
- A useful hierarchy of communication might be:
- Speaking verbally over the phone or in person with the person who has made the decision or action you are challenging;
- Raising the issue verbally with their manager/supervisor;
- Emailing or writing to the head of the Public Authority;
- Consider any external complaint mechanisms. While a human rights breach must commence in the ACT Supreme Court, other bodies like the Ombudsman may be able to take a free complaint about the actions or decisions of a Public Authority. Complaints about discrimination can be made to the ACT Human Rights Commission for free also. See below for a list of other external complaints agencies.
- Raising the issue with the relevant ACT Government minister or another elected representative. A list is available at http://www.parliament.act.gov.au
- Seeking legal advice (you can do this earlier) about progressing the matter through courts or the ACT Civil and Administrative Tribunal. See below for a list of free and paid legal advice options. The courts can grant any remedy for a human rights breach except financial damages. You should remember that there are likely to be financial and emotional/stress from commencing formal legal action.
- If you are advocating for someone else, make sure that you communicate clearing the progress or outcomes of each step in your advocacy and also when the advocacy issue ends make sure that they understand the outcome and that the issue is now closed.
- What were the outcomes of the actions you employed?
- Was the issue resolved? If the issue was not resolved, what can you, and your organisation, learn for next time?
- Are there gaps in knowledge for you or your organisation? Is training required to further understand the HR Act (online and face to face training is available through the ACT Human Rights Commission).