Human Rights Law Resource Centre

An opinion piece on ‘Australia’s New Human Rights Framework: Icing without a Cake’
Human rights news, including in relation to the development of an individual complaints procedure under the Convention on the Rights of the Child, and the provision of further support to the Centre by the Victorian Department of Justice and DLA Phillips Fox
Updates on National Charters of Rights, including a summary of the Australian Government’s ‘Human Rights Framework’ in response to the National Human Rights Consultation, and an opinion piece on ‘The Church and a Charter: What Must Christians Do Better?’ by Rev Angus McLeay
Updates on the Victorian Charter of Rights, including a summary of the recent report of the Victorian Equal Opportunity and Human Rights Commission on the Charter, and six new case studies from Victoria and the UK which demonstrate the ways in which a Charter of Rights can improve transparency and accountability in government, promote dignity and address disadvantage
Victorian Charter case notes, including from the Victorian Civil and Administrative Tribunal (landmark decision that the eviction of a vulnerable tenant from public housing without adequate justification is unlawful and a breach of human rights)
Comparative law case notes on significant recent human rights decisions from the European Court of Human Rights (the right to privacy and the protection of families and children; same-sex relationships and tenancy rights; ‘deeming offences’ and the right to a fair hearing), and the UK (balancing the right to freedom of religious belief and non-discrimination in the provision of charitable services; possession orders and the right to privacy and the home; refugee rights and non-refoulement)
Information about the Centre’s policy work, including in relation to foreign policy and human rights, the role of parliamentary committees in protecting human rights, the review of the Equal Opportunity for Women in the Workplace Act, and freedom of religion in Samoa
Updates on the Centre’s casework and litigation, including in relation to a landmark Charter decision on appeal to the High Court of Australia
Details of forthcoming human rights seminars and events, including the 2010 Human Rights Dinner with Louise Arbour (President, International Crisis Group and former UN High Commissioner for Human Rights) and the Hon Rob Hulls MP (Deputy Premier of Victoria), a seminar with Prof Philip Alston (UN Special Rapporteur on Extrajudicial Killings, and details of the 2010 Castan Centre Human Rights Conference
Information about useful human rights resources, including details of HRLRC in the news, and the latest edition of the Alternative Law Journal
Information about human rights jobs, including with the Victorian Equal Opportunity and Human Rights Commission
Updates on major international human rights developments from our foreign correspondent in Geneva, Claire Mahon, Coordinator of the Project on Economic, Social and Cultural Rights at the Geneva Academy of International Humanitarian Law and Human Rights
‘If I were Attorney-General’ by Nicky Friedman, Head of Pro Bono and Community Services with Allens Arthur Robinson

Opinion

Australia’s New Human Rights Framework: Icing without a Cake

Human rights education and parliamentary engagement with human rights will be enhanced under a new ‘Human Rights Framework’ for Australia, announced by the Attorney-General on 21 April 2010 in response to the recommendations of the National Human Rights Consultation.

However, the Rudd Government’s failure to commit to a comprehensive, national Human Rights Act — a key recommendation of the Consultation which was supported by over 87% of a record 35,000 public submissions — is a missed opportunity to strengthen Australia’s democracy and build a fairer, more inclusive community.

A Human Rights Act deferred is human rights denied. The Government’s deferral of a Human Rights Act until at least 2014 — when the new Human Rights Framework will be reviewed — is a denial of the many benefits which demonstrably accompany such an Act.

Evidence and experience from Victoria and the Australian Capital Territory, both of which have their own Human Rights Acts, demonstrate that a national Act would promote more accountable government, improve public services, address poverty and disadvantage, and enshrine fundamental, unifying values. Instead, the homeless, the elderly, people with mental illness and children with disability — all of whom have been beneficiaries of human rights laws in Victoria and the ACT — must now wait at least another 4 years before their human rights are adequately protected and promoted at the national level.

The deferral of a Human Rights Act aside, there are a number of significant and valuable commitments contained in the new ‘Human Rights Framework’. These commitments include the establishment of a Joint Parliamentary Committee on Human Rights, which will be mandated to review legislation and conduct inquiries on human rights issues, and the development of a range of scrutiny mechanisms to ensure that Australian laws and polices are compatible with human rights. These measures will improve the development of laws, policies and practices and play an important role in ensuring that human rights are properly considered in both legislative and executive decision-making processes.

The Government has also committed to invest much needed funds in human rights education – providing $2 million over four years to the community sector and $6.6 million over the same period to the Australian Human Rights Commission. This reflects the recommendation of the National Human Rights Consultation Committee that ‘human rights education be the highest priority’. The Government will also engage in more extensive consultation on both international and domestic human rights issues with civil society. These are important initiatives and should not be discounted. If properly implemented, they will assist in further developing a culture of respect for human dignity and human rights in Australia.

Critically, however, the effectiveness of such measures will be substantially reduced without a robust enabling framework in the form of a comprehensive, judicially enforceable Human Rights Act. Without such an Act, many vulnerable people are left without human rights remedies and Australians are forced to continue to look to international human rights standards rather than seek inspiration and redress from local human rights laws. As one homeless man said to me, ‘It is like icing without a cake’. Under the Rudd Government, he’ll have to wait at least another four years for that.

In announcing the Framework, the Attorney-General was correct in stating that the ‘enhancement of human rights should be done in a way that unites us’ rather than divides us. Far from being divisive, however, a Human Rights Act would unite us through legal protection and institutional strengthening of those Australian democratic values we hold in common. As demonstrated by the Apology to the Stolen Generations, political leadership and vision can unite people, even on controversial issues. That is particularly the case when what is proposed is good, evidence-based policy that resonates deeply with our Australian commitment to respect, tolerance, fairness, freedom and the rule of law.

For the next four years at least, Australians will need to continue to look to international human rights laws and UN institutions in New York and Geneva for many of the human rights protections that should be enshrined in law here at home.

The campaign for a Human Rights Act that befits, protects and unites us has only just begun.

Philip Lynch is Executive Director of the Human Rights Law Resource Centre

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News

Human Rights Council Calls for Development of Individual Complaints Procedure for Violations of Children’s Rights

In a significant resolution adopted at its 13th Session, the UN Human Rights Council has mandated the development of an optional protocol to the UN Convention on the Rights of the Child to enable the Committee on the Rights of the Child to receive and examine communications from children and their representatives alleging violation of their rights. The resolution calls for a Working Group to develop a proposal by September 2010.

Welcoming the resolution, the NGO Group for the Convention on the Rights of the Child said ‘this is a great breakthrough for children’s rights. The Convention on the Rights of the Child is the only core international human rights treaty that does not have a communications procedure. We have lobbied very hard for the past four years to get this result.’

According to the NGO Group, the new instrument could be adopted by the end of 2011.

DLA Phillips Fox Continues Strong Support for Centre

We are very pleased to announce that DLA Phillips Fox has agreed to extend the secondment of Ben Schokman for a further three years to 31 December 2012. Ben has been on permanent secondment to the Centre from DLA PF since 2007 and has recently been appointed to the role of Director of International Human Rights Advocacy.

The Centre takes this opportunity to thank DLA PF for its significant, longstanding and outstanding support.

For further information about DLA PF’s Pro Bono and Community Care programs, see www.dlaphillipsfox.com/category/18/Community.

Victorian Department of Justice Increases Funding for Centre and Promotion of Human Rights

The Victorian Department of Justice has recently advised that it will increase its annual funding to the Human Rights Law Resource Centre by $30,000 and provide a one-off payment of $20,000 to assist in funding the Centre’s amicus curiae interventions in Charter of Rights cases.

The Centre thanks the Department of Justice, together with the Attorney-General, the Hon Rob Hulls MP, for this valuable funding increase. Their support will provide the Centre with greater funding security and enhance our capacity to promote and protect human rights in Victoria.

Philip Lynch is Executive Director of the Human Rights Law Resource Centre

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National Charter of Rights Developments

Australian Government Announces New Human Rights Framework

On 21 April 2010, the Attorney-General launched the Federal Government’s response to the National Human Rights Consultation, entitled ‘Australia’s Human Rights Framework’.

According to the Attorney, the Framework is based on five key principles and focuses on:

reaffirming a commitment to our human rights obligations;
the importance of human rights education;
enhancing our domestic and international engagement on human rights issues;
improving human rights protections including greater parliamentary scrutiny; and
achieving greater respect for human rights principles within the community.

The Framework does not include a Human Rights Act or Charter, which was a key recommendation of the National Human Rights Consultation Report supported by over 87% of a record 35,000 submissions. According to the Attorney:

While there is overwhelming support for human rights in our community, many Australians remain concerned about the possible consequences of such an Act. The Government believes that the enhancement of human rights should be done in a way that as far as possible unites, rather than divides, our community. The Government is committed to positive and practical change to promote and protect human rights. Advancing the cause of human rights in Australia would not be served by an approach that is divisive or creates an atmosphere of uncertainty or suspicion in the community.

Notwithstanding the rejection of a Human Rights Act, the Government’s Human Rights Framework does contain a number of significant commitments to strengthen the promotion and protection of human rights in Australia:

establishing a new Parliamentary Joint Committee on Human Rights to provide greater scrutiny of legislation for compliance with Australia’s international human rights obligations;
requiring that each new Bill introduced into Federal Parliament is accompanied by a Statement of Compatibility with Australia’s international human rights obligations;
reviewing legislation, policies and practice for compliance with the seven core international human rights treaties to which Australia is party;
investing more than $12 million over four years in various education initiatives to promote a greater understanding of human rights across the community;
developing a new National Action Plan on Human Rights to ‘outline future action for the promotion and protection of human rights’;
consolidating and harmonising federal anti-discrimination laws into a single Act; and
creating a ‘Human Rights Forum’ to enable whole-of-government engagement with non-government organisations on an annual basis.

The Government has committed to review the Framework in 2014 to ‘assess its effectiveness in the promotion and protection of human rights in Australia’.

A copy of the ‘Human Rights Framework’ is available at www.ag.gov.au/humanrightsframework.

Further information about the National Human Rights Consultation, including the outcome of the Committee’s report, is available at www.hrlrc.org.au/our-work/focus/national-consultation/.

The Church and the Charter: What Must Christians Do Better?

It will surprise many Christians that church leaders have led the ‘No’ campaign in the public debate about whether Australia should enact a national Charter of Rights. Others in the Church will feel that the adoption of a Charter would be another step along the path to a more secular, hostile environment for Christians and would be glad to know that Christian leaders are helping to block the measure. Still others in the Church probably have no specific view about a Charter of Rights, and would be wondering what the fuss is all about.

Given the significant role of Christian opposition to a federal Charter of Rights, it is worth asking what issues have led some Christians to vocally and publicly oppose one and what is guiding the Church debate.

Two forces have been driving opposition to a Charter from within the Church. First, there is a widespread view that Charters are part of a larger secularist agenda. Second, Charters raise fears among those of a conservative mindset who closely align Christianity with conservatism.

Charters and Secularism Concerns

Many Christians are concerned about an increasingly ‘secular’ society and secular-faith tensions have played a key role in motivating opposition to a Charter. Human rights – and Charters (or Bills) of Rights – are felt by some to accelerate the process of secularisation. In particular, it’s claimed that secularists use Charters to undermine religious freedom. The National Consultation on Human Rights found that three Victorian examples which reflect secularism concerns were frequently cited in Christian opposition to Charters: (a) religious anti-vilification laws; (b) the 2009 abortion law reform; and (c) review of the Equal Opportunity Act.

Whether or not there is a generic link between secularism and human rights, these specific examples offer little evidence that Charters promote secularism. The religious vilification laws under which the controversial ‘Catch the Fire Ministries’ case was run, for example, has no link to Victoria’s Charter for a simple reason: the law in question was passed 5 years before the Charter.

Objections to Charters on the basis that they neglect the rights of the unborn have been raised, as has the claim that a Charter did nothing to protect religious views in Victoria’s recent abortion law reforms. Human rights treaties tend to avoid issues which are internationally unable to gain consensus since they are based on international agreement among many countries. This still allows individual countries to reach their own conclusions on contested issues like abortion and euthanasia.

In Australia, for instance, it’s entirely possible for a state or federal Parliament to amend a Charter concerning abortion. In fact, this has happened. The Catholic church sought a special amendment to Victoria’s Charter excluding the Charter from having effect on abortion. Ironically, a couple of years later, this section (s 48) turned out to hobble the Charter’s power to protect religious conscience (with regard to Christian medical staff objecting to abortion procedures). This so-called ‘failure’ by Victoria’s Charter was then cited as evidence for the secular nature of Charters. But the circumstances hardly justify this conclusion.

The most commonly cited issue identifying Charters with secularisation has been proposed amendments to Victoria’s Equal Opportunity Act. What the precise link is between a Charter and the amendments is yet to be explained in detail. Consider, for instance, that reviews of equivalent legislation in jurisdictions without Charters routinely occur. Amendments of legislation which are described as ‘secularist’ are also commonplace in jurisdictions without Charters. How can we tell that a Charter is actually responsible and not other secular forces generally at work in society?

These examples from Victoria do not offer solid evidence that Charters promote secularism. This is not to deny the reality of tensions between secularist and faith communities nor the possibility that any Parliamentary law (and Charters are simply statutory laws) can be used or abused with respect to faith communities. The way Charters are interpreted and applied will depend less on the instruments than on the political consensus and institutions of the societies that apply them. For instance, the Victorian Government recently passed law and order legislation that it acknowledged was incompatible with its Charter (the Bill passed with bipartisan support). If the legislation is later tested in the courts, they may find it inconsistent with the Charter and may issue a declaration to that effect. But unless the Parliament decides otherwise, the legislation will remain in force unless and until it is amended by Parliament. Charters cannot override Parliamentary power.

Conservativism and Christianity

Besides Christians, the strongest opposition to a Charter has come from those with a conservative outlook . In the media, for example, well known conservative columnists such as Janet Albrechtsen of The Australian newspaper have opposed a Federal Charter with gusto. Conservatism has played a role in Christian opposition, as parts of the evangelical and Catholic churches resonate with a conservative mindset on social issues. Conservatives seek to preserve long-standing institutions and values. They prefer change to be by way of ‘evolution’ not ‘revolution’. Conservatively minded people regard Charters as radical and risky. For Christian conservatives, the risks are not only social and political, but also spiritual. They are concerned about advancing secularism leading to the erosion of Christian institutions. On the other hand, those with a progressive leaning are more sanguine about change generally, and tend to focus on the potential benefits it may bring, whilst downplaying the risks.

None of this pre-supposes that one or other disposition is inherently on the side of truth, justice or, indeed, God. It is to say that when, for instance, a progressive favours a Charter because changes to help the vulnerable ‘must be good’, they may be reaching a conclusion based on prior assumptions which have little to do with actual evidence about a Charter. Progressives, being favourable towards change, may too quickly discount alternative reform measures. On the other hand, conservatives may too easily treat a Charter as a ‘radical’ reform which puts society at risk. They neglect the evidence of how our existing Charters are operating in practice. Jumping to conclusions based on prior assumptions or dispositions typifies much of the debate so far.

One way to begin severing the Gordian knot of opposing social ideologies at work within Christian circles is by pursuing a more candid and complete discussion of the issues. The Church’s critique of a Charter has yet to move beyond fears for religious protection, as a recent summary of the Church’s concerns by Professor Patrick Parkinson (a Charter critic), shows. I was recently speaking with one man about the debate. Though not a Christian, I’ve found him to be particularly gracious in his approach to the Church. He commented, ‘my difficulty with the way some Christian groups have approached this debate is that they’ve elevated one area of concern [religious protection] above every other’.

A more adequate discussion of human rights Charters within Christian circles should have at least four features:

First, the Church needs to reflect on the evidence from the National Consultation on Human Rights. One Christian leader labelled the Consultation as an exercise in ‘transparently shallow and contrived activism’. This kind of rhetoric does no justice to the lengthy, detailed submissions on behalf of people with disability, the poor, homeless, mentally ill, the elderly, Indigenous and family support groups, among many others. It forgets that an independent committee produced the Report, one headed by the widely respected (and rather conservative) Jesuit priest, Father Frank Brennan.

Second, the Church needs more scrutiny of examples purporting to say how Charters work. The Victorian examples discussed earlier suggest the need for as much. Myth and rumour are in wide circulation in Christian email, websites, blogs, talks and media. Flawed overseas examples are being used to stoke fear. For instance, Zimbabwe and the Soviet Union have been used to predict how an Australian Charter would work. Comparisons with such vastly different societies are misleading. The same principle applies to examples from countries like the UK and Canada. More care is needed so that examples are meaningful, based on fact and used in context.

Third, the Church needs to discuss cases reporting benefits from Charters (I have seen none discussed by Christian groups opposing a Charter). Evidence from reviews, submissions and case studies show that families, the disabled, the mentally ill, refugees and the homeless are being aided by Charters.

Finally, the Church needs to re-assess its theology and practice in the public sphere. How does it distinguish conservative or progressive predelictions from core Christian principles? When the Church plays a significant role in public debate, its motives, or the appearance of motives, will be under critique by wider society. How is God calling it to respond to the social changes in faith and ethics? In Jesus’ Sermon on the Mount (Matthew 5) Jesus affirms tradition when he says he did not come to abolish the Hebrew Scriptures. But their fulfillment by him was, at the same time, radically challenging. Where is a conservative ‘habit of mind’ preserving what needs respect and where should a ‘holy restlessness’ with the current structures call Christians to challenge them?

Polling suggests majority support for a Federal Charter of Rights (those opposed question the veracity of the polls, but the impression of support is widespread). If Church opposition has been decisive in blocking a Charter, many will query on what basis the Church has stymied reform which is supported by a majority of the community. In the light of this, the Church had better be sure that its principles are – and are seen to be – the gospel of Jesus, the proper fulcrum point in Christian debate.

Rev Angus McLeay is an Anglican minister based at St Hilary’s Anglican Church in Kew, Victoria. He also directs IsaiahOne, which educates and advocates for human rights in Christian communities (see www.IsaiahOne.org).

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Victorian Charter of Rights Developments

‘Making Progress’: Human Rights Commission Releases 2009 Report on Charter

The Victorian Equal Opportunity and Human Rights Commission’s 2009 Report on the Operation of the Charter of Human Rights and Responsibilities was tabled in Parliament on 13 April 2010.

The Report, entitled Making Progress, examines ‘the growing impact of the Charter, human rights and Charter-related initiatives’ and ‘shows that rights protection is a positive force in ensuring fairer laws and policies and improving the delivery of services in Victoria’. Tabled together with the Report were Occasional Papers on women’s rights, economic, social and cultural rights, and Indigenous self-determination.

The Report concludes that:

“Bearing in mind that Victoria is only three years into a process of extensive cultural change around human rights, progress has been considerable. The majority of public authorities contributing to this report are making steady progress in incorporating human rights into their work. Some are making slower progress (but can now look to their peers for an abundance of direction and ideas) and there are examples of impressive progress and innovative projects, policies and programs.

Importantly, the Charter is contributing to enriched public discourse around a range of issues. In some instances, the Charter assists in illuminating success and progress, helping to identify why certain initiatives work particularly well and providing guidance for emulating these initiatives. In other cases, evaluation against the Charter may be a source of discomfort and raise difficult questions, but this is one of the strengths of the Charter and the human rights dialogue model – with debate around ‘difficult’ issues identifying more effective responses to these issues and encouraging improvements in services and practices across government.

There is clear evidence about the practical benefits being delivered by the Charter. Significant improvements have been made to the support provided to marginalised and vulnerable Victorians, including Indigenous Victorians, people with a disability and those with a mental illness. Consumers are being engaged more often and more effectively in designing and planning services. Human rights considerations are being used in diverse areas, from reviewing taxation policies for people affected by the February 2009 bushfires to improving pay equity in local councils and providing better protection for international students. Changes are being made to the daily operations and processes of many organisations that are making it easier for people to access information and services, and ensuring that services are fair and effective.

These outcomes indicate that the Charter has much to offer Victorians in improving their interaction with government, from relatively minor transactions to matters with a potentially profound impact on their wellbeing, health and quality of life.”

The Report and Papers are available at www.humanrightscommission.vic.gov.au/publications/charter%20reports/.

News Case Studies on the Role of a Charter of Rights in Promoting Dignity and Addressing Disadvantage

The Human Rights Law Resource Centre continues to collect and publish case studies which demonstrate the ways in which a Charter of Rights or Human Rights Act can improve transparency and accountability in government, promote dignity and address disadvantage.

There are now more than 35 case studies from Victoria, the ACT and the UK available at www.hrlrc.org.au/content/topics/national-human-rights-consultation/case-studies/.

Below are six recent case studies from Victoria and the UK.

Victoria

Threatened eviction of father and 3 year old son from public housing breaches human rights

A Somali refugee and his three year old son who lived in a home owned by the Director of Housing were threatened with eviction. The home was leased to the man’s late mother in 1998 by the Victorian Department of Housing and he continued to occupy the premises after his mother died from cancer. The Director of Housing applied for a possession order under the Residential Tenancies Act. The case was brought before the Victorian Civil and Administrative Tribunal which found the Director’s decision to seek eviction without any justification or evidence was in breach of the right to family and home under s 13(a) of the Charter. The Director’s application for a possession order was dismissed. This case will affect 70,000 public housing applicants in Victoria.

Source: Director of Housing v Sudi [2010] VCAT 328

Relevant Human Rights: Right to family, right to privacy and right to home.

Making the Bushfire Royal Commission accessible to victims and their families

Members of the Victorian Bar provided advice to Bushfire Legal Help (which provides free legal assistance and information to victims of the 2009 Black Saturday bushfires) regarding the impact of the Charter on the Commission’s obligation to promote the participation of individuals in its inquiry.

Based on the advice, Bushfire Legal Help urged the Commission, in accordance with Charter principles, to promote effective participation in the inquiry by affected individuals and to adopt a broad approach to applications for permission to appear before the Commission (the most direct way of participating).

The right to life in the Charter was used to support the argument that the Commission had a legal duty to facilitate appropriate involvement by next of kin and families of those who died and those whose lives were endangered by the fires.

Following the advocacy, the Commission made improvements to its communications about public participation and adopted a practice of hearing oral evidence daily from a person affected by the fires. While the Commission refused permission to appear to a number of individuals and groups, it granted limited permission to appear to fire victims involved in a class action arising out of the fires.

Source: Bushfire Legal Help & the Federation of Community Legal Centres (Victoria) Inc

Relevant Human Rights: Right to life

Corrections Victoria’s Mothers and Children Policy Program reform

Corrections Victoria’s Mothers and Children Policy Program operates to support family ties to assist successful reintegration once women are released from prison. The Charter was influential in a two-year transformation of the organisation’s program, policies, procedures and regulations relating to correctional services. The Mother and Children Program was revised to consider Charter principles in the assessment of applications for children to participate in the program, to provide greater protection of children from safety or security risks and to keep information confidential during the application process. The Department of Justice amended policy as one of the initiatives citing the Charter’s influence on policy and service.

Source: Victorian Equal Opportunity and Human Rights Commission, 2009 report on the operation of the Charter of Human Rights and Responsibilities

Relevant Human Rights: Right to protection of families and children and the right to privacy and reputation

Department of Sustainability and Environment reforms policy

The Department of Sustainability and Environment (DSE) revised its rules and guidelines taking human rights into account by establishing a Diversity (Inclusion) Action Plan 2009-2012 to provide equal access by the public to DSE employment and service. The Charter was citied as influential in reforms including protecting the rights of people with a disability, Indigenous Australians, women, people from culturally and linguistically diverse backgrounds and young people. Charter principles now guide the department in the implementation and delivery of natural resource management.

Source: Victorian Equal Opportunity and Human Rights Commission, 2009 report on the operation of the Charter of Human Rights and Responsibilities

Relevant Human Rights: Cultural rights, right to equality and non-discrimination

United Kingdom

Domestic violence survivor uses Human Rights Act to keep her children and access safe accommodation

A female victim of domestic violence moved multiple times with her children to avoid being discovered by an abusive husband who was attempting to track the family down. When the family arrived in London they were denied housing after social workers determined that the woman was an unfit parent for intentionally placing her children into homelessness. The woman challenged the claim, arguing for her right to respect for family life under the Human Rights Act. Social services considered the woman’s rights and the importance of taking actions that are necessary and proportionate in regard to her children and, as a result, the family remained together and the social service department offered to provide a deposit for any secure private rented accommodation.

Source: BIHR, London Irish Women’s Centre (February 2010)

Relevant Human Rights: Right to respect for family life

Human Rights Act used to enable a mental health patient to get married

A long-term resident mental health patient’s capacity to consent to marriage was being considered by staff at the hospital where he was committed. The staff identified and considered human rights concerns protected under the Human Rights Act including the man’s right to respect for private and family life under art 8 and his right to marry and found a family under art 12. Using the framework of ensuring people can access their rights and only limiting these human rights when necessary and proportionate, staff agreed that it was in the man’s best interests to support him to marry.

Source: BIHR (February 2010)

Relevant Human Rights: Right to private and family life and right to marry

For further case studies from the UK, see the new micro-website, ‘Our Human Rights Stories’ at www.ourhumanrightsstories.org.uk/.

If you have a story of where human rights have made a positive difference, please contact Rachel Ball from the HRLRC at rachel.ball@hrlrc.org.au or on (03) 8636 4433. Your privacy is respected and all stories will be de-identified.

Rachel Ball is Director of Policy and Campaigns with the Human Rights Law Resource Centre. Loren Days is a volunteer with the Centre and LLM candidate at Melbourne Law School.

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Victorian Charter Case Notes

Eviction of Vulnerable Tenant from Public Housing without Adequate Justification a Breach of Human Rights

Director of Housing v Sudi [2010] VCAT 328 (31 March 2010)

Justice Bell, sitting as President of the Victorian Civil and Administrative Tribunal, has held that the Director of Housing acted unlawfully under s 38(1) of the Charter in seeking, without adequate justification, to evict a refugee family from social housing in breach of their right to family and the home under s 13(a). His Honour further held that this unlawfulness invalidated the Director’s application for a possession order under s 344 of the Residential Tenancies Act.

Facts

Warfa Sudi, a Somalian refugee, and his three year old son live in a home owned by the Director of Housing. The tenancy agreement for the home was originally made with Mr Sudi’s mother, Qamar Ali, but Mr Sudi and his son continued to occupy the premises after Ms Ali died from cancer. The Director of Housing subsequently made application under s 344(1) of the Residential Tenancies Act for a possession order to enable him to evict Mr Sudi.

It was common ground that the Director of Housing is a public authority under the Charter and, as such, is required by s 38(1) to act compatibly with human rights and give proper consideration to human rights in making decisions.

Mr Sudi argued that the Director’s decision to seek to evict him breached his human rights under s 13 (right to privacy, family and the home), s 17 (protection of families and children) and s 19 (cultural rights) of the Charter. Mr Sudi further argued that, by consequence of this unlawfulness, the Director was not entitled to seek to evict him.

The Director of Housing did not seek to justify the application for a possession order as a permissible limitation on human rights under s 7(2) of the Charter, but instead submitted that the Tribunal had no jurisdiction to consider the lawfulness of his actions under the Charter, that being a matter reserved to the Supreme Court.

Decision

Summary

Justice Bell held that the Tribunal had jurisdiction to consider the Charter issues in the case. His Honour further held that the decision and conduct of the Director of Housing in seeking to evict Mr Sudi and his son without justification was a breach of the right to family and the home under s 13(a) of the Charter and thus unlawful pursuant to s 38(1). As the Director’s making of an application for a possession order was ‘unlawful’ under the Charter, it was not a valid application properly made under s 344 of the Residential Tenancies Act. The Director’s application was therefore dismissed.

Human Rights Jurisdiction of Tribunal

Justice Bell held that the Tribunal had jurisdiction to consider and determine the Charter issues in the case, stating that ‘when issues under the Charter legitimately arise in applications before the Tribunal, it should resolve them if it can properly do so’.

His Honour pointed out that ‘human rights remedies must be accessible in order to be effective’ and that, were the Tribunal not to have jurisdiction in the first instance, litigants in circumstances such as Mr Sudi would be forced to have their matters partly heard in the Tribunal and partly heard in the Supreme Court. This would be a ‘bad outcome’ for access to justice and contrary to the principles of ‘finality and complete dispute resolution’.

Right to Family and the Home: s 13(a)

Section 13(a) of the Charter provides that ‘a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’.

The requirement of ‘legality’ requires that any interference with this right be governed by ‘clear and publicly accessible rules of law’ and by procedures that are ‘predictable and foreseeable’.

The prohibition against ‘arbitrary interference’ is in addition to the requirement of lawfulness, and requires that any interference be reasonable, necessary and proportionate.

After considering jurisprudence from the UN Human Rights Committee, the European Court of Human Rights, the United Kingdom and South Africa, Bell J held that evicting or seeking to evict someone from public or social housing constitutes an interference with their right to home and, where a family is living in the premises, also amounts to an interference with their right to family:

Evicting people living in public housing is a severe infringement of their human rights, especially those which protect the family and the home. Unless interference is demonstrably justified, it breaches human rights and is ‘unlawful’ under the Charter.

Given the ‘serious interference’ with s 13(a) in this case, Bell J did not consider it necessary to determine whether other human rights were engaged by the circumstances.

Limitations on Rights: s 7(2)

Section 7(2) of the Charter provides that any limitation on human rights must be reasonable and demonstrably justifiable. Following the decisions of DAS v VEOHRC [2009] VSC 381 and R v Oakes [1986] 1 SCR 103, Bell J held that:

the onus of establishing that a limitation of human rights is reasonable and justified is on the party seeking to uphold the limitation;
in many cases, this requires evidence;
the standard of proof is high; and
the evidence must be cogent and persuasive.

In the present case, the Director of Housing failed to provide any justification or evidence in support of the interference with s 13(a) constituted by the possession order application. Accordingly, Bell J held that the making of the application was ‘unlawful’ under s 38(1) of the Charter.

Consequence of Unlawfulness

Justice Bell then turned to the question as to the consequence of the Director’s unlawfulness under the Charter in the context of an application for a possession order under the Residential Tenancies Act. On this issue, His Honour held that:

An application which the director has purportedly made under s 344(1) of the Residential Tenancies Act in breach of his human rights obligations under s 38(1) of the Charter, and which is therefore ‘unlawful’, is not a valid and proper application… It is in law no application at all and does not enliven the jurisdiction of the tribunal to make the possession order sought. The making of the director’s application was itself an ‘unlawful’ act… In a proceeding under s 344(1), the tribunal cannot just shut its eyes to the unlawfulness of the making of the application, as the director suggests I do. That would rob “unlawful’ of the potent force of its natural meaning, create confusion about the consequences of breaching human rights and mock the rule of law, including the human rights protections in the Charter, which parliament has wisely obliged public authorities to respect, on pain of their actions being ‘unlawful’.

Accordingly, Bell J dismissed the Director’s application for a possession order.

The decision is available at www.hrlrc.org.au/files/R2009-1177-R2009-3264-and-R2009-33454-Director-of-Housing-v-Sudi.pdf.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

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Comparative Law Case Notes

Right to Privacy and Protection of Children and Families

MAK and RK v United Kingdom [2010] ECHR 363 (23 March 2010)

The European Court of Human Rights has held that restrictive hospital visiting conditions imposed on a father, the first applicant, suspected of abusing his daughter, the second applicant, breached the right to private and family life under art 8 of the European Convention on Human Rights. Conducting a blood test and taking photographs of the child without first obtaining parental consent were also considered a violation of art 8.

Considering art 13, the Court held that the father’s right to an effective domestic remedy was violated as there was no domestic redress available to him against the local authority. The withdrawal of legal aid from the child, however, was not considered to breach art 13.

Facts

In 1997 the child, then aged 8, first visited a doctor after the father and his wife noticed bruising on her legs. No medical abnormality was identified at that appointment. Five months later, after her swimming teacher raised similar concerns about bruising, the parents returned to the doctor who referred the child to a paediatrician. Shortly before the appointment with the paediatrician, the child had complained to her mother that she had hurt herself in the genital area while riding her bike.

The paediatrician concluded that the bruising was not symptomatic of a skin disease and admitted the child to hospital for further tests. At the hospital, the father (who had to leave to go to work) instructed the paediatrician that no testing should be conducted until the child’s mother arrived and provided consent. Prior to her mother arriving, the child was nonetheless given a blood test, photographs were taken of her legs and a notification of suspected abuse by the father was made to the local authority.

When the father returned later that day to visit the child, he was told by a nurse that there were orders that he not be allowed to see her. The following day, hospital staff were correctly informed that they could not prevent the father from visiting the child and he was allowed to see her, albeit under supervision. Later that day the wife informed the paediatrician of the child’s complaint about her injury while riding her bike.

A couple of days later, the mother noticed bruising on the child’s hands so she arranged for the child to see a dermatologist. A rare skin disease was diagnosed and the child was discharged from hospital. The paediatrician subsequently wrote to confirm that she now considered there was insufficient evidence to suggest the child had been abused and, as such, the father could no longer be implicated in that suggestion.

The applicants issued domestic proceedings against the local authority and hospital trust, alleging negligence. The County Court found that the local authority did not owe the father a duty of care. This was confirmed on appeal. The County Court also found that the hospital, but not the local authority, had owed the child a duty of care. Despite having been granted leave to appeal this decision, the child’s legal aid certificate was withdrawn because the likely costs were disproportionate to the value of the claim.

Decision

Art 3 (prohibition on torture, inhuman or degrading treatment or punishment)

Before the European Court, the father claimed that the accusation that he abused the child had caused him to suffer distress and humiliation, which was a breach of art 3 of the Convention. The Court rejected this argument, observing that the authorities had an obligation to take measures to protect children from abuse and it would be counter-productive to the effective protection of children’s rights to hold authorities liable whenever a mistake was made, whether or not the error was reasonable. There was no special element in this case that took the level of distress to the father beyond that which inevitably flowed from the execution by the authority of its duty.

Art 8 (right to private and family life)

The Government accepted that the initial decision to prevent the father from visiting the child in hospital constituted an interference with both applicants’ right to family life. However the applicants also alleged that the visiting restrictions imposed on the father subsequently, and the hospital’s failure to obtain parental consent for the blood test and photographs of the child, violated art 8 of the Convention.

The Court determined that the interference caused by requiring the father’s remaining visits to be supervised was clearly imposed in pursuance of the legitimate aim of protecting the child. Considering whether the interference could be regarded as ‘necessary in a democratic society’ for the purposes of art 8, the Court emphasised that ‘mistaken judgments or assessments by professionals do not per se render childcare measures incompatible’ with art 8 and it was satisfied there were sufficient reasons for the authorities to suspect abuse. However it considered that the authorities’ failure to consult a dermatologist as a matter of urgency was not proportionate to, and had undermined, the legitimate aim of protecting the child. Further, there was no justification for conducting a blood test and taking the photographs of the child without parental consent. Accordingly, there was a violation of the applicants’ rights under art 8.

Art 6 (right to a fair and public hearing)

The child alleged that the withdrawal of legal aid had violated her rights under art 6 § 1 of the Convention. The critical question for the Court was whether the Government’s restrictions on her right to access a court were legitimate and proportionate. The Court accepted the Government’s justification for deciding to withdraw funding. It was relevant to its decision that there were avenues to appeal the decision to withdraw legal aid.

Art 13 (right to an effective domestic remedy)

As there was no domestic redress available to the father against the local authority at the relevant time (the Human Rights Act 1998 (UK) was not yet in force) the Court accepted there had been a violation of his human rights under art 13 of the Convention. However the Court did not accept that the withdrawal of legal aid from the child was a breach of art 13 as she was still able to pursue her claim, albeit without legal aid.

Relevance to the Victorian Charter

This decision may inform the Court’s interpretation of s 13 (respect for a person’s private life) and s 17 (protection of families and children) of the Victorian Charter. In particular, the analysis of whether the interference, although considered legitimate, was ‘necessary in a democratic society’ provides useful guidance for the application of s 7 (reasonable limitations) of the Charter to the rights enshrined in these sections.

While authorities will not be held responsible for erroneously implementing protective measures for suspected incidents of child abuse, this case emphasises that such protective measures must not interfere with private and family life beyond what is considered necessary.

The decision is available at www.bailii.org/eu/cases/ECHR/2010/363.html.

Carly Dunn is a lawyer and Abigail Gill is a Senior Associate with Allens Arthur Robinson

Balancing the Right to Non-Discrimination and Freedom of Religious Belief in the Provision of Charitable Services

Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales & Anor [2010] EWHC 520 (Ch) (17 March 2010)

The England and Wales High Court has held that it is for the Charity Commission to determine whether discrimination against same-sex couples by a charitable organisation is justified.

Facts

In 2007, the Equality Act (Sexual Orientation) Regulations 2007 (’Regulations’) were introduced in England. One significant effect of the Regulations was to make it unlawful for a person to discriminate on the grounds of sexual orientation in the provision of goods, facilities or services to the public, subject to certain exceptions.

Catholic Care is a charity that carries out a range of charitable activities, including the provision of adoption services. This adoption service focuses on ‘hard to place children’, being children who, for reasons of disability, age, ethnic origin or otherwise, it is harder than usual to find willing adoptive parents. Catholic Care carries out its adoption agency activities in accordance with the tenets of the Roman Catholic Church. As a result, Catholic Care refused to provide adoption services to same-sex cohabiting couples or civil partners.

In order to avoid contravention of the Regulations, Catholic Care sought to take advantage of an exception in reg 18 that applies to charities (’Exception’). The Exception makes it lawful to provide benefits only to persons of a particular sexual orientation where the charity is acting in pursuance of a charitable instrument which itself restricts the enjoyment of benefits to persons of that sexual orientation. A ‘charitable instrument’ in this context refers to the instrument establishing or governing the charity.

Catholic Care was governed by a Memorandum of Association, which did not restrict the enjoyment of benefits to persons of a particular sexual orientation. Therefore, Catholic Care sought to amend its Memorandum of Association to restrict the availability of its charitable services to heterosexual people in accordance with the tenets of the Church. However, in order to give effect to the proposed amendments, Catholic Care needed approval by the Charity Commission.

The Commission refused to approve the amendments to the Memorandum of Association. This is because the Commission considered that the Exception only enables charities and charitable instruments to restrict the class of persons who receive benefits from the charity based on the sexual orientation of those beneficiaries. The Tribunal reasoned that Catholic Care provides ‘benefits’ only to adopted children and not the parents. As a result, the Charity Tribunal concluded that the Exception allows Catholic Care to limit the provision of benefits to children of a particular sexual orientation, but not prospective adoptive parents of a particular sexual orientation. Therefore, any discrimination on the basis of the sexual orientation of prospective parents would be unlawful. In these circumstances, the Commission did not consider it necessary to deal with the human rights issues.

Catholic Care appealed to the Charity Tribunal. For different reasons to the Charity Commission, the Charity Tribunal dismissed the appeal. Catholic Care then appealed to the England and Wales High Court.

Decision

As a starting point, the High Court noted that the human right to non-discrimination was a qualified rather than absolute right. Justice Briggs noted that ’some forms of differential treatment may be justified…if undertaken for a legitimate aim and in a manner where the means employed are proportionate to the aim sought to be realised’. To this end, Catholic Care argued that through its adoption services, it served the legitimate aim of providing suitable adoptive parents for a significant number of children that would otherwise not be provided for. Further, the differential treatment by reference to the sexual orientation of prospective adoptive parents was a proportionate means of achieving that legitimate aim as there were other agencies willing to provide similar services to same-sex couples.

The Equality and Human Rights Commission intervened in this case and in response argued that it cannot be in the public benefit for a charity to discriminate in a way that breaches human rights. Whilst the High Court did consider these issues, the case was not decided on this basis.

The decision by Briggs J primarily focused on the correct interpretation of the term ‘benefits’ contained in the Exception to the Regulations at reg 18. As indicated above, the Charity Commission argued that the Exception only allows charities to restrict the provision of services based on the sexual orientation of the adopted children who are beneficiaries of those services. However, Briggs J found that limiting the interpretation of ‘benefits’ to apply only to adopted children ‘was neither logical [nor] rational’. In rejecting the Commission’s interpretation, Briggs J stated that ‘Catholic Care…serves needy children by making benefits available to prospective adoptive parents’. He noted that while charities can loosely be described as serving a beneficial class, ‘it is by no means uncommon for them to achieve that purpose by conferring benefits on persons outside that class’. As a result, Briggs J concluded that the term ‘benefits’ contained in the Exception to the Regulations had a broader meaning than was relied upon by the Charity Commission.

Justice Briggs therefore held that the Exception at reg 18 may apply to Catholic Care’s practices, but this application is limited to the extent that such practices are justified according to the right to equality under the European Convention on Human Rights. It is therefore necessary to conduct an analysis of whether the refusal to provide services to same-sex couples is a justified limitation on the right to non-discrimination. Justice Briggs remitted the decision back to the Charity Commission to conduct this analysis and reconsider whether Catholic Care should be permitted to adopt the proposed changes to its Memorandum of Association.

Relevance to the Victorian Charter

Under reg 14 of the Regulations, religious organisations may discriminate against a person when providing services on the basis of the person’s sexual orientation, if this is necessary to comply with the doctrine of the organisation or to avoid conflicting with strongly held religious convictions. However, this exemption does not apply to religious organisations that provide services or fulfil functions on behalf of a public authority.

Catholic Care was a publicly funded body so it did not enjoy protection from reg 14. As a result, it was necessary for Catholic Care to rely on the Exception at reg 18 instead.

This situation can be contrasted to the situation under the Equal Opportunity Act 1995 (Vic) (’EO Act’). The EO Act contains a broad exception for religious organisations, which on its face allows all religious bodies to discriminate on the basis of various attributes, including sexual orientation, regardless of whether the organisation receives public funding or is performing of a contract for government.

However, this case adds to existing jurisprudence which supports the proposition that such an exception is not consistent with the broad right to equality under the Charter. As indicated in Ladele v London Borough of Islington [2009] EWCA Civ 1357, whilst there is an absolute right to hold a religious belief, some limitations on a person’s ability to manifest their religious beliefs are necessary for the protection of the rights and freedoms of others.

The decision is available at www.bailii.org/ew/cases/EWHC/Ch/2010/520.html.

Lara Werbeloff and Melanie Schleiger, Lander & Rogers

Same-Sex Relationships: Right to Non-Discrimination and Succession to Public Tenancy

Kozak v Poland [2010] ECHR 280 (2 March 2010)

The European Court of Human Rights has held that Poland violated arts 8 and 14 of the European Convention on Human Rights by denying a man living in a homosexual relationship the right to succeed to a tenancy after the death of his partner.

The Court rejected the notion that the definition of marriage as a union of a man and a woman in the Polish Constitution could be used to justify the denial of certain family rights to cohabiting same-sex partners and held that in Poland ‘de facto marital cohabitation’ must be understood to include persons in a same-sex relationship.

Facts

Kozak, a Polish national, lived in a municipality flat rented by his partner for around nine years. After his partner died, Kozak applied to the municipality to succeed to the tenancy of the flat. The request was denied on the basis that the applicant had not lived in the flat before his partner’s death and Kozak was ordered to move out.

Kozak brought proceedings against the municipality, arguing that he had a right to succession on the basis that he satisfied the requirements of the housing legislation in force at the time, having run a common household, and thus having lived in a de facto relationship, with his partner for many years.

The claim was dismissed by the District Court, and subsequently by the Regional Court. Both courts held that regardless of whether Kozak could establish that he had lived permanently in his partner’s flat, he could not meet the statutory requirements of the housing law as only de facto relationships between partners of different sex were recognised by Polish law.

The Regional Court also denied the applicant’s request to have the question of whether the term ‘de facto marital cohabitation’ in the relevant housing law also concerned persons living in a homosexual relationship referred to the Supreme Court, or (in the alternative) for the Regional Court to obtain a ruling of the Constitutional Court as to whether the term, understood as including only heterosexual partners, was compatible with the Polish Constitution and the Convention.

Kozak subsequently lodged an application with the European Court of Human Rights, alleging that he had been discriminated against on the ground of his homosexual orientation in breach of arts 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the Convention.

Decision

The Court agreed with Kozak’s submission that the domestic courts had focused on the homosexual nature of his relationship in establishing whether he fulfilled the conditions of the housing legislation. It found that both courts had rejected his claim on the grounds that under Polish law only a relationship between a woman and a man could qualify as de facto marital cohabitation.

Although the Court noted that not every difference in treatment will amount to a violation of art 14, it held that when the distinction in question operates in the sphere of sexual orientation, an ‘intimate and vulnerable sphere of an individual’s private life’, particularly weighty reasons need to be advanced before the Court to justify the measure complained of. To be lawful, any such measure should pursue a ‘legitimate aim’ and the state must demonstrate ‘reasonable proportionality between the means employed and the aim sought to be realised’. In particular, the Court held:

Where a difference of treatment is based on sex or sexual orientation the margin of appreciation afforded to the State is narrow and in such situations the principle of proportionality does not merely require that the measure chosen is in general suited for realising the aim sought but it must also be shown that it was necessary in the circumstances.

The Court found that the essential objective of the difference in treatment of the applicant by the domestic courts had been to ensure the protection of the family founded on ‘a union of a man and a woman’, as stipulated by the Polish Constitution. However, although the Court accepted that this was in principle a legitimate reason which might justify a difference in treatment, it held that when striking the balance between the protection of the family and the rights of sexual minorities under the Convention, a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy could not be accepted by the Court as necessary for the protection of the family.

The Court held that in its choice of means designed to protect the family and secure, as required by art 8 (respect for family life), the State must take into account developments in society and changes in the perception of social, civil-status and relational issues, ‘including the fact that there is not just one way or one choice in the sphere of leading one’s family or private life’.

On this basis the Court unanimously concluded that there had been a violation of art 14 when considered in conjunction with art 8.

Relevance to the Victorian Charter

The Statute Law Amendment (Relationships) Act 2001 (Vic) and the Statute Law Further Amendment (Relationships) Act 2001 amended many Victorian Acts of Parliament, including laws relating to property rights and inheritance matters, to ensure that all couples are treated equally, irrespective of gender.

However, this case emphasises that any difference of treatment based on sexual orientation will breach s 8 of the Charter (right to recognition and equality before the law) unless it can be proved to be absolutely necessary, and that attempts to justify differential treatment of same-sexual couples on the basis of the protection of families and children afforded by s 17 of the Charter are unlikely to succeed.

It is also interesting to note that in this case, like in Ghaidan v Godin-Mendoza [2004] 2 AC 557, the Court went beyond the express terms of the legislation and effectively reinterpreted the Polish definition of ‘spouse’. In light of the Victorian Court of Appeal’s differing approach to the interpretative provisions of the Charter recently elucidated in R v Momcilovic [2010] VSCA 50, it is likely that express provisions (like those in the Polish Constitution) will be the subject of declarations of inconsistency by Victorian courts, rather than a reinterpretation of the provisions to make them more compatible with human rights. However, adopting the Momcilovic methodology, in the absence of express provisions to the contrary it is likely the courts would interpret the term in the way that is most compatible with human rights, thereby extending it to include same-sex couples.

The decision is available at www.bailii.org/eu/cases/ECHR/2010/280.html.

Mimosa Rizzo is a lawyer with Corrs Chambers Westgarth

Possession Orders and the Right to Privacy and the Home

Salford City Council v Mullen [2010] EWCA Civ 336 (30 March 2010)

In this case, the England and Wales Court of Appeal considered the impact of House of Lords decisions on the rights of tenants occupying premises under ‘introductory’ or ‘homeless’ accommodation legislation. In considering the ability of tenants to raise arguments under art 8 of the European Convention on Human Rights, the Court of Appeal clarified the scope of the ‘gateway b’ defence. This decision provides an important component of the proposed Supreme Court appeal Pinnock v Manchester City Corporation [2010] 1 WLR 713 in which 9 Supreme Court Justices will consider these issues in relation to ‘demoted tenant’ legislation.

Facts

In Salford City Council v Mullen, the England and Wales Court of Appeal considered the position of five public housing tenants who had been provided with accommodation either as ‘introductory tenants’ or ‘homeless persons.’

Justice Waller of the Court of Appeal noted this decision was required to assist lawyers and judges to interpret decisions of the House of Lords in relation to similar issues (namely, Kay v Lambeth London Borough Council [2006] UKHL 10 [2006] 2 AC 465 and Doherty v Birmingham City Council [2008] UKHL 57 [2009] 1 AC 367). Further, it was noted that the newly constituted Supreme Court (formerly the House of Lords) was due to revisit Kay and Doherty in the context of ‘demoted tenants’ when it hears the matter of Pinnock v Manchester City Corporation in July 2010.

Rather than stay the appeals under consideration until Pinnock is resolved, the Court of Appeal was persuaded to hear the matters urgently on the basis that the Supreme Court in Pinnock may benefit from the ability to also address ‘homeless persons’ and ‘introductory tenants’ as considered in Salford.

The Salford decision relates to art 8 of the European Convention on Human Rights which grants every person the right to respect for his or her ‘home’. In Kay and Doherty, the majority of the House of Lords held that the County Court was unable to rule on the proportionality of possession orders under art 8(2) of the Convention. Article 8(2) states that:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In the leading majority speech of Lord Hope in Kay, it was established that the County Court might only decline to make a possession order (in circumstances where the law was otherwise satisfied) in two situations:

where it was seriously arguable that the law which enabled the County Court to make the possession order was itself incompatible with art 8 (referred to as ‘gateway (a)’); or
where the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers on the ground that it was a decision that no reasonable person would consider justifiable (referred to as ‘gateway (b)’).

Without considering each of the five individual Salford appeals in detail, it is worth noting the facts of the following two appeals:

In Powell v Hounslow (the Powell appeal) – this appeal related to ‘homeless accommodation’ provisions. The facts were that Ms Powell had failed to provide information to the department responsible for her housing benefit and was in arrears due to the non-payment of this benefit. In the County Court proceedings Ms Powell sought to rely on the ‘gateway b’ defence.
In Hall v Leeds (the Hall appeal) – this appeal related to the ‘introductory tenancy’ provisions. The facts were that Mr Hall was alleged to have breached his introductory tenancy by making excessive noise and engaging in anti-social behaviour. Mr Hall did not dispute the alleged breaches of his tenancy agreement but sought to argue they were due to his mental illness. Further, Mr Hall sought to raise a ‘gateway b’ defence and claimed the County Court needed to consider whether it was reasonable and proportionate to make a possession order.

Decision

The Court of Appeal noted the Housing Act 1985 (the 1985 Act) established that, unless an exception applied, tenancies granted by local authorities were generally ‘secure’ and that Parliament intended to provide significant procedural and substantive protection against eviction. By contrast provisions relating to ‘homeless accommodation’ and ‘introductory tenancies’ provided much less security.

Homeless accommodation and introductory tenant accommodation

Homeless accommodation: The Housing Act 1996 (the 1996 Act) established the duties of local authorities in relation to homeless persons. The Court of Appeal noted that the 1996 Act established non-secure tenancies for people regarded as homeless and that Parliament had intended to ‘exclude such tenancies from the procedural and substantive protections that apply in the case of secure tenancies.’ The rationale for such legislation was said to enable local authorities to swiftly recover possession of homeless accommodation and ‘make efficient and cost-effective use of their limited resources in the housing field.’

Introductory tenant accommodation: The 1996 Act also established an ‘introductory tenant’ regime enabling local authorities to grant non-secure tenancies to new tenants as a system of ‘probation’ in order to assist local authorities to tackle anti social behaviour. This legislation established that the County Court had no ability to assess the merit or validity of reasons underlying an application for possession. The Court of Appeal noted that the decision of R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510 had established that the introductory tenancy regime was compatible with art 8 of the Convention.

‘Gateway b’ defence

In relation to ‘homeless accommodation’ the Court of Appeal held that the decision of Barber v London Borough of Croydon [2010] EWCA Civ 51 established that a ‘gateway b’ defence may be raised by tenants in County Court proceedings.

In considering the ‘introductory tenant accommodation’ the Court of Appeal followed its decision in Pinnock v Manchester City Corporation [2010] 1 WLR 713, where it was held the County Court only had power to adjourn proceedings to enable an application to be made for judicial review, if such a point were seriously arguable.

In considering the scope of the ‘gateway b’ defence the Court of Appeal noted this did not involve a full proportionality review provided for in art 8(2) of the Convention. Further, the Court referred to the majority speech of Lord Hope in Doherty where he concluded

In my opinion the test of reasonableness should be… whether the decision to recover possession was one which no reasonable person would consider justifiable.

The Court of Appeal referred to comments of Lord Bingham in Kay where he stated ‘[c]ourts should proceed on the assumption that domestic law strikes a fair balance and is compatible with art 8.’ In these circumstances it stated that only ‘highly exceptional circumstances’ would justify a ‘gateway b’ defence in relation to homeless accommodation.

Applied to the individual appeals it was held:

In relation to the Powell appeal – if a ‘gateway b’ defence were arguable the appropriate venue for this was the County Court. The Court of Appeal stated that in its view a ‘gateway b’ argument should have been summarily dismissed and that the appeal should also be dismissed.
In relation to the Hall appeal – the Court of Appeal held that the County Court was not entitled to consider a ‘gateway b’ defence. If it were considered that such a defence was arguable the possession proceedings should have been adjourned to enable an application for judicial review by the Administrative Court.

Of the five tenants before the Court of Appeal in Salford, ultimately only two appellants (Powell and Hall) were granted leave to appeal to the Supreme Court and may have their matters heard together with the Pinnock.

Relevance to the Victorian Charter

Fortunately, Victoria does not have separate residential tenancies legislation for probationary tenants, introductory tenants or homeless tenants. The Salford decision is nonetheless of interest in light of its consideration of jurisdictional issues relating to human rights arguments and the recent Victorian Civil and Administrative Tribunal judgment of Bell J in Director of Housing v Sudi [2010] VCAT 328.

In Sudi, the Director of Housing applied to evict Mr Sudi and his three year old son from their public housing premises. The Director refused to provide any justification for this action under the Victorian Charter and argued that VCAT had no jurisdiction to consider this issue.

In considering human rights implications under the Charter, Bell J rejected the argument that VCAT was unable to consider whether the Director breached the Charter. On this issue, His Honour stated, ‘the Tribunal has both the jurisdiction and the obligation to determine whether it has jurisdiction in a proceeding, including the validity of provisions which impact on that jurisdiction.’

The Salford and Sudi decisions represent different approaches to the issue of jurisdiction in relation to human rights. In Sudi, Bell J referred to the decision of the Supreme Court of Canada in Zurich Insurance Co v Ontario (Human Rights Commission) [1992] 2 SCR 321, where human rights legislation was described as the ‘final refuge of the disadvantaged and the disenfranchised’ and the ‘last protection of the most vulnerable members of society’. As a matter of access to justice, the approach of Bell J in Sudi is to be preferred to interpretations which push human rights towards the Supreme Court.

The decision is available at www.bailii.org/ew/cases/EWCA/Civ/2010/336.html.

Chris Povey is a Senior Lawyer with the PILCH Homeless Persons’ Legal Clinic

‘Deeming’ Traffic Offences Breaches Right to Presumption of Innocence and Silence

Krumpholz v Austria [2010] ECHR 341 (18 March 2010)

In Krumpholz v Austria, the European Court of Human Rights held that deeming the owner of a vehicle to have committed a traffic offence (by virtue of their ownership of the vehicle) breaches the European Convention right to a fair hearing and presumption of innocence.

Facts

In February 2003, the applicant’s car was recorded by a radar speed detector travelling at a speed of 181 km in a 130 km zone. The district authority wrote to the applicant, ordering him to disclose the name and address of the driver of the car, but the applicant did not reply. The district authority then issued a penalty notice, ordering the applicant to pay a fine for speeding, and for failing to disclose the driver’s identity.

The applicant objected, saying that he had not been driving the car and was not in the country at the time. He refused to disclose the driver’s identity, as the car had been used regularly by a number of people. In dismissing the applicant’s objection, the authority noted that the applicant had refused to disclose who had been driving his car at the time of the offence and concluded that he had been the driver.

The applicant appealed, maintaining that the obligation to disclose the identity of the driver and the inference drawn that he was the driver were incompatible with art 6 of the European Convention of Human Rights, which relevantly states:

In the determination of …any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

The applicant reiterated that he had not been driving his car and that he had not even been in Austria at the relevant time. He further asserted that his car had been used regularly by a number of persons but that he had not kept any records and was therefore not in a position to provide the required information. However, the appeal was dismissed, as:

the obligation on the accused in criminal proceedings to cooperate means that he is not merely responsible for contesting the specific evidence against him, without submitting equally specific statements in reply and adducing the relevant evidence … merely asserting that he was not driving the vehicle registered in his name at the scene of the offence and at the material time runs counter to the appellant’s obligation to contribute to the establishment of the relevant facts.

Decision

Before the European Court of Human Rights, the applicant argued that the finding of guilt based on his refusal to disclose the identity of the driver violated his right to silence on the one hand and the presumption of innocence on the other. In addition, he asserted that the obligation to disclose the identity of the driver of the vehicle in itself violated the right to silence.

Austria submitted that the applicant had not been convicted of failure to disclose the identity of the driver, but convicted of the underlying traffic offence on the basis of evidence which had been freely evaluated by the authority. Referring to an earlier decision of the Court (Murray v UK 18731/91 [1996] ECHR 3), the Government stressed that the right to silence was not absolute and that it did not preclude the drawing of inferences from the accused’s silence where, on the basis of the evidence obtained, the situation clearly called for an explanation.

The Court concluded that (para 32):

… the question of a possible violation has to be determined in the light of all the circumstances of the case, having particular regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence before them and the degree of compulsion inherent in the situation.

The Court distinguished the Murray case on the basis that the earlier case concerned the application of a law which allowed the drawing of inferences from the accused’s silence, where the prosecution had established a case against him which clearly called for an explanation.

However, in this case, the decisions were merely based on evidence of the speed recording of the car (and a policeman’s statement that this recording had been duly made). There was no evidence giving any indication as to the identity of the driver, and the authority had a submission before it claiming that the applicant had not been driving the car, had not even been in Austria at the time and could not provide the name and address of the driver. The Court could not find that ‘in such a situation the only common-sense conclusion was that the applicant himself had been the driver’ (para 40). The Court concluded (para 42):

In sum, the drawing of inferences in a situation which did not clearly call for an explanation from the applicant and without sufficient procedural safeguards being applied violated the applicant’s right to silence and the presumption of innocence.

The Court declared that there had been a violation of arts 6(1) and 6(2) of the Convention.

Relevance to the Victorian Charter

Last year, Victorian government agencies issued 2,385,175 traffic infringements. Many of the offences under the Road Safety Act 1986 (Vic) are categorized as ‘operator onus’ offences, including exceeding speed limits, disobeying traffic signals and traveling in designated lanes detected by road safety cameras. If an owner or operator fails to nominate another driver, then they become liable and are ‘deemed’ to have committed the offence (see See Road Safety Act 1986 (Vic) pt 6AA).

This judgment questions the validity of traffic offence provisions which deem the owner of a vehicle to have committed an offence.

In earlier decisions, the European Court of Human Rights has held that the obligation for vehicle owners to disclose the driver at the time when a traffic offence was committed did not violate the right to silence and the privilege against self-incrimination. In those earlier cases, the Court noted that direct compulsion was brought to bear on the respective applicants, but that this was an acceptable part of the regulatory regime in which car owners and drivers subjected themselves to certain responsibilities and obligations. The Court also had regard to the nature of the penalties, the limited nature of the inquiry permitted, and the procedural safeguards that provided that the registered keeper of the car was not left without any defence.

The question that arises, and is dealt with in this case, is the question of the procedural safeguards. Arguably, the procedural safeguards in Victoria are similar to those in Austria (as described in this judgement), in that applicants are required to make specific submissions to show that they were not driving the vehicle (supported by evidence) and there is no requirement for the matter to be heard unless the applicant requests a hearing. The European Court held that this process contains insufficient procedural safeguards to protect the substantive Convention rights, mirrored in ss 25(1) and 25(2)(k) of the Charter, and allowing similar criticisms to be levelled at the Victorian infringements system.

The decision is available at http://www.bailii.org/eu/cases/ECHR/2010/341.html.

James Farrell is Manager of the PILCH Homeless Persons’ Legal Clinic, convenor of the Federation of Community Legal Centres’ Infringements Working Group and a community representative on the Infringements Standing Advisory Committee.

Refugee Rights and Non-Refoulement: Proposed Transfer of Asylum Applicant from UK to Greece did not Breach European Convention

Saeedi, R (on the application of) v Secretary of State for the Home Department & Ors [2010] EWHC 705 (Admin) (31 March 2010)

The England and Wales High Court recently held that the proposed transfer of an asylum applicant to Greece was not incompatible with art 3 of the European Convention on Human Rights or similar rights guaranteed under European Union law.

Facts

On 1 April 2009, the UK Secretary of State sought to transfer the claimant from the UK to Greece for determination of his application for asylum, pursuant to the Dublin Regulation (an EU instrument).

Under art 10(1) of the Dublin Regulation, the responsibility lies on a Member State to examine an asylum application where it is established that the applicant first entered that Member State’s border irregularly, having come from a third country. Accordingly, in this case, Greece was held responsible for processing the claimant’s asylum application.

The claimant argued that transfer under the Dublin Regulation would place him at risk of treatment in violation of art 3 of the European Convention, which prohibits inhuman and degrading treatment. He also argued that the removal would be contrary to similar fundamental human rights recognised as general principles of European Union law. These claims were based on the conditions and procedures for asylum applicants in Greece, as well as the possibility of onward refoulement. The claimant advanced three key arguments in support of his claim, discussed below.

Decision

Argument 1 – incompatibility of the ‘deeming provision’ with the European Convention

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (UK) c 19 contains a so-called ‘deeming provision’. Countries listed in Schedule 3 of the Act are deemed to be ‘safe countries’ as regards Refugee Convention-prohibited persecution, as well as onward refoulement in breach of the European Convention or the Refugee Convention. The Act restricts the ability of a claimant to appeal to the Asylum and Immigration Tribunal against the decision to remove him or her to a safe country.

The deeming provision does not apply to claims relating to treatment in contravention of the European Convention within the receiving country. However, para 5(4) of Schedule 3 requires the UK Secretary of State to certify these claims as being clearly unfounded unless satisfied that they are not clearly unfounded.

The claimant’s first argument was that this deeming provision is incompatible with the European Convention.

In the 2009 case of Nasseri, the House of Lords held that the deeming provision (as it related to Greece) was not incompatible with the European Convention on the evidence before the Court. Hence, the deeming provision’s incompatibility with the European Convention in this matter depended on the provision of fresh evidence indicating that the situation in Greece had deteriorated sufficiently.

Justice Cranston found that the evidence concerning the conditions and procedures for asylum applicants in Greece, as well as the risk of refoulement, was not materially different from the evidence in Nasseri. Thus, the deeming provision was held not incompatible with art 3 of the European Convention. It was held that there was no real risk that removal to Greece under the Dublin Regulation would result in the claimant suffering treatment prohibited under art 3. Citing Lord Hoffman’s acknowledgment in Nasseri that the procedures for asylum applicants in Greece ‘may leave something to be desired’, the principle established by the Strasbourg Court in KRS (affirmed in Nasseri) was that these matters ought to be taken up with the Greek domestic authorities or the European Court of Human Rights if necessary.

Argument 2 – the Secretary of State’s ‘clearly unfounded claim’ certificate ought to be quashed

The second key question for Cranston J was whether the Secretary of State’s Schedule 3 para 5(4) certificate ought to be quashed. As mentioned above, this provision of the Act required the Secretary of State to certify an applicant’s European Convention claims as clearly unfounded unless satisfied that they were not clearly unfounded.

On the evidence before the Court in this case, it was held that the Secretary of State’s certification was valid. There was no basis for a conclusion that the European Convention claims were not clearly unfounded.

Argument 3 – the scope of the Secretary of State’s obligations under Art 3(2) of the Dublin Regulation

Finally, Cranston J had to determine the scope of the Secretary of State’s obligations under art 3(2) of the Dublin Regulation. This section gives a Member State discretion to process an asylum application within its own country, notwithstanding that responsibility for examining the claim lies with another Member State under the Regulation.

His Honour held that, in exercising the art 3(2) discretion, the Secretary of State was bound to consider the rights embodied in art 1 (human dignity), art 18 (guarantee of the right of asylum) and art 19(2) (prohibition on inhuman or degrading treatment) of the EU Charter of Fundamental Rights. This was because these human rights form part of the general principles of European Union law, and the Secretary of State was applying a European Union law instrument. As there was found to be only an ad hoc policy regarding the application of art 3(2), there was no evidence that the Secretary of State had considered these fundamental rights.

However, despite this failure, Cranston J did not consider that the claimant’s fundamental rights would be jeopardised by removal to Greece.

It followed from these three findings that the Secretary of State could validly return the applicant to Greece under the Dublin Regulation.

Relevance to the Victorian Charter

This decision may provide some guidance on the operation of s 10(b) of the Victorian Charter, which prohibits cruel, inhuman and degrading treatment.

In this case it was held that a risk the claimant would suffer destitution and homelessness in Greece, including by virtue of Greece’s failure to provide subsistence or the opportunity to seek employment, could not form the basis of a claim against the Secretary of State for breach of art 3 of the European Convention. The High Court reiterated that the threshold for a contravention of art 3 of the European Convention was high, especially where the claim did not involve the deliberate infliction of pain and suffering. These principles might inform the interpretation of s 10(b) of the Charter by a Victorian court.

The decision is available at www.bailii.org/ew/cases/EWHC/Admin/2010/705.html.

Jesse Rudd, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

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HRLRC Policy Work

Setting the Agenda: Policy Brief on Foreign Policy and Human Rights

The Human Rights Law Resource Centre is preparing a series of policy briefs designed to set the agenda for Australia in certain areas of human rights. Each brief identifies a human rights problem or opportunity, discusses the imperative for action, adduces and analyses relevant evidence, and makes concrete recommendations for Australia to advance the agenda at the international and national levels.

The policy brief on ‘Foreign Policy and Human Rights’ contends that human rights should be both a key goal and a key instrument of Australian foreign policy. It sets out that, despite identifying ourselves as a ‘principled advocate of human rights for all’, and demonstrating significant commitment to human rights in practice, Australia has not developed a comprehensive, consistent and coherent policy on human rights and foreign affairs. Such a policy could integrate human rights in all areas of Australian foreign affairs and capitalise on the benefits of doing so.

The brief maintains that Australia’s approach to human rights and foreign policy should be progressive, principled and persistent. It sets out 14 concrete recommendations for action at the international, regional and domestic levels under the headings of:

a principled approach to universal human rights and accountability;
multilateralism and engagement with the United Nations; and
empowering communities and supporting NGOs.

The policy brief is available at www.hrlrc.org.au.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

Enhancing Parliament’s Role in the Protection of Human Rights: Insights from the UK

The Centre has provided a brief supplementary submission to the Inquiry into the future direction and role of the Senate Scrutiny of Bills Committee.

The Supplementary Submission draws the Senate Committee’s attention to a recent report by the UK’s Joint Committee on Human Rights, entitled Enhancing Parliament’s Role in Relation to Human Rights Judgments (at www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/85/85.pdf).

The UK Report considers the role of parliament, and parliamentary committees, in monitoring and promoting the implementation of adverse decisions of the European Court of Human Rights and declarations of incompatibility by domestic courts under the Human Rights Act 1998 (UK).

The UK Report is predicated on the view that parliament has a ‘central role’ in the promotion and protection of human rights.

Although Australia is, obviously, not subject to the jurisdiction of the European Court of Human Rights, we are subject to the jurisdiction of a range of quasi-judicial expert human rights bodies, including the UN Human Rights Committee, the Committee against Torture, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, and the Committee on the Rights of People with Disabilities. At present, the Australian Parliament does not play any role in monitoring or overseeing the implementation of adverse decisions of these independent expert bodies. Further, as far as the Centre is aware, there is no comprehensive, coordinated departmental policy or approach to responding to and implementing such decisions.

In its submission to the Senate Committee, the Centre recommended that an Australian Joint Committee on Human Rights should, among other things, ‘monitor and report on the implementation of the Concluding Observations, Recommendations and Views of UN treaty bodies and the recommendations of the Special Procedures and the Universal Periodic Review of the UN Human Rights Council’ (see para 5(c)). In its April 2009 Concluding Observations on Australia, the UN Human Rights Committee similarly recommended that Australia should ‘establish appropriate procedures to implement’ Views of the Committee under the First Optional Protocol to the ICCPR.

The UK Report contains a number of very useful recommendations as to ‘the UK’s system for monitoring and responding to Court judgments’ (relevant, by analogy, to Australia’s system for monitoring and responding to UN treaty body decisions) and also includes, as an Annex, a detailed guide for government and departments as to relevant roles, responsibilities and processes in this regard.

Phil Lynch is Executive Director of the Human Rights Law Resource Centre

Submission to Australian Government on Australia’s Report for the Universal Periodic Review

The Centre has made a submission to the Attorney-General’s Department on information to be included in the Australian Government’s report to the Universal Periodic Review by the UN Human Rights Council. The Australian Government requested two-page submissions from the public by 16 April 2010.

The Centre’s submission:

addresses positive developments to be included in the Australian Government’s report; and
identifies a number of areas of concern and challenge regarding the protection and promotion of human rights in Australia.

The submission is available at www.hrlrc.org.au/content/topics/international-human-rights-mechanisms/submission-issues-to-be-included-in-the-australian-governments-report-under-the-upr-april-2010/.

Further information on Australia’s review under the UPR process is available at www.hrlrc.org.au/content/topics/international-human-rights-mechanisms/universal-periodic-review-of-australia-in-february-2011/.

Ben Schokman is Director of International Human Rights Advocacy with the Centre

Report of Review of the Equal Opportunity for Women in the Workplace Act

The Office for Women has released its Review of the Equal Opportunity for Women in the Workplace Act 1999 Consultation Report following a consultation process involving 136 public submissions, a survey of 744 reporting organizations and 859 employees, 21 expert and stakeholder interviews and five facilitated roundtables.

The review recommended a number of solutions for improving employment outcomes for women at both a cultural and operational level. These included implementing equal employment opportunity policies in the workplace as well as cultivating support of and commitment to equal opportunity at the senior management levels of organisations. Concrete measures such as the availability of flexible work arrangements, access to training and development opportunities, and the provision of equal and transparent remuneration were also highlighted in the report’s conclusions as positive steps in promoting workplace equality.

According to the report’s findings, encouraging organisations to view equal employment opportunity as part of an overall business strategy by demonstrating the strong ‘business case’ for employing women and introducing family friendly policies is also important in securing gender equality, as is the need to involve employees in consultative processes. Outside individual workplaces, the introduction of targets, compliance audits, public recognition measures, accountability mechanisms and financial incentives for employers were all viewed as valuable tools for driving cultural change. Enforcement strategies and workplace regulation were also highlighted.

Findings in relation to the EOWW Act itself included some submissions for a tighter focus on achieving gender equality rather than merely securing equal employment opportunities. Contributors to the consultation also suggested the EOWW Act apply more broadly to include the Commonwealth public sector and small businesses. The development of workplace programs under the Act was met with general support, though it was noted that programs are often developed without the input or knowledge of employees, and need to be improved, for example, by setting measurable actions and goals. The reporting process under the Act, though viewed positively by stakeholders, needs improvement. In particular, the review found that an outcome-focused process which is more cost-and time-efficient and which involves employees would be more effective. The review also revealed general dissatisfaction with the enforcement of the EOWW Act, including lack of enforcement powers and weak sanctions such as the ‘naming in Parliament’ provision.

The review’s conclusions on the Equal Opportunity for Women in the Workplace Agency indicated that it is fulfilling its role and is valued, especially in terms of its educational and awareness raising functions, despite limitations in terms of the legislative framework and resourcing. The focus of discussion about the EOWA was its structural organisation, with a small number of recommendations that it merge with another agency to improve efficiency.

Numerous recommendations from the HRLRC’s submission to the consultation were positively discussed in the report, which is available at www.fahcsia.gov.au/sa/women/pubs/general/eowa_kpmg_rpt/Documents/EOWW_Act_Consultation_rpt.pdf.

Sarah Lenthall is a volunteer with the Human Rights Law Resource Centre

Freedom of Religion: Submission to Commission of Inquiry into the Right to Freedom of Religion in Samoa

The Samoan Government has appointed a Commission of Inquiry into the working of art 11 of the Samoan Constitution, which protects the right to freedom of religion. As it is currently drafted, art 11 provides that every person has the right to freedom of thought, conscience and religion, and that laws restricting this right are only valid if the restriction is reasonable and is for the protection of public order, health or morals, national security, or the rights of others. Although the exact nature of the Government’s planned amendments to art 11 is at present not clear, it appears that it is intended that the freedom be limited so as to allow the restriction of new religions and denominations entering into the country.

On 31 March 2010, the Human Rights Law Resource Centre made a submission to the Commission. The submission outlines the rights to freedom of religion and non-discrimination as codified in the International Covenant on Civil and Political Rights, and considers the permissibility of limitations on human rights under international law. It is hoped that this general information will assist the Commission in its task, and that the Commission will seek further submissions once the specific nature of any proposed amendments is made known.

The Centre’s submission is available at www.hrlrc.org.au/content/topics/asia-pacific/freedom-of-religion-submission-to-commission-of-inquiry-in-samoa-31-march-2010/.

Michael Dunstan is on secondment to the Centre from Mallesons Stephen Jaques

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HRLRC Casework

Special Leave to Appeal to High Court Sought in Landmark Charter Case

On 14 April 2010, Vera Momcilovic applied for special leave to appeal from the judgment of the Victorian Court of Appeal in the landmark Charter case of R v Momcilovic. In that case, the Court clarified the operation of key provisions of the Victorian Charter of Human Rights and made a Declaration of Inconsistent Interpretation in respect of s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Human Rights Law Resource Centre made submissions as amicus curiae in the Court of Appeal.

In the special leave application, Ms Momcilovic contends that the Court of Appeal erred in, among other things:

interpreting s 5 of the DPCS Act as casting on an accused a legal – as opposed to only an evidentiary – burden of disproof of possession of drugs; and
concluding that it was not possible, within the meaning of s 32(1) of the Charter, to interpret s 5 of the DPCS Act as casting on an accused only an evidentiary – as opposed to a legal – burden of disproof of possession of drugs in circumstances where the Court also concluded (correctly) that, insofar as s 5 of the DPCS Act placed a legal burden of disproof on an accused, it was not compatible with the right to the presumption of innocence in s 25(1) of the Charter and did not, within the meaning of s 7(2) of the Charter, place a reasonable limit on that right.

If Special Leave is granted, the Centre will seek leave to appear as amicus curiae in the High Court.

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Seminars and Events

2010 Human Rights Dinner – 14 May 2010

with Louise Arbour (President and CEO, International Crisis Group) and Rob Hulls (Deputy Premier of Victoria)

The Human Rights Law Resource Centre and the Public Interest Law Clearing House invite you to the 2010 Human Rights Dinner with Louise Arbour (President, International Crisis Group; former United Nations High Commissioner for Human Rights) and Rob Hulls (Deputy Premier and Attorney-General of Victoria).

Time: 7.00pm to 11.45pm

Date: Friday, 14 May 2010

Venue: Melbourne Convention and Exhibition Centre, 1 Convention Centre Place, South Wharf (Hilton South Wharf entrance, Rooms 210 and 211)

Tix: Full price: $120 Subsidised: $75 (for employees of non-profit and community organizations)

RSVP: 3 May 2010 (Use booking and payment form at www.hrlrc.org.au)

About Louise Arbour

Louise Arbour is President and CEO of the International Crisis Group, a leading global NGO working to prevent and resolve deadly conflict.

From 2004 to 2008, Ms Arbour held the office of United Nations High Commissioner for Human Rights.

Ms Arbour was a judge of the Supreme Court of Canada from 1999 to 2004, prior to which she was Chief Prosecutor for the International Criminal Tribunals for the former Yugoslavia and for Rwanda.

Among many other honours, Ms Arbour has received the United Nations Human Rights Prize, been made a Companion of the Order of Canada and been conferred with over 30 honorary doctorates.

The 2010 Human Rights Dinner is proudly supported by Qantas and Mallesons Stephen Jaques.

‘The Rise of Targeted Assassinations and the Implications for International Law’

with Professor Philip Alston, UN Special Rapporteur on Extrajudicial Killings

This seminar is presently jointly by the Castan Centre for Human Rights Law and the Human Rights Law Resource Centre.

Time: 6pm to 7pm

Date: Wednesday, 19 May 2010

Venue: Monash University Law Chambers, 472 Bourke Street, Melbourne

RSVP: Free public lecture

Registration essential to castan.centre@law.monash.edu.au or (03) 9905 3327

About Philip Alston

Philip Alston is UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Special Adviser to the UN High Commissioner for Human Rights on the Millennium Development Goals and the John Norton Pomeroy Professor of Law at New York University. He co-chairs the NYU Center for Human Rights and Global Justice.

Professor Alston’s other UN appointments have included stints as a member of the Group of Experts on Darfur appointed in 2007, Chair of the UN Committee on Economic, Social, and Cultural Rights from 1991 until 1998 and UNICEF’s legal adviser during the drafting of the UN Convention on the Rights of the Child. He has held appointments at Harvard Law School, the Australian National University and the European University Institute. Professor Alston teaches, researches and publishes primarily in international law and international human rights law. He received degrees in Law and in Economics in Australia and a JSD from Berkeley.

Castan Centre 2010 Human Rights Conference – 16 July 2010

The Castan Centre is proud to announce that Human Rights 2010 will be held on Friday, 16 July 2010 at the State Library of Victoria. Registration is now open.

Session 1 – The changing face of Australian human rights laws

The right to equality and the right to freedom of religion – not absolutes!

Dr Helen Szoke, Commissioner, Victorian Equal Opportunity and Human Rights Commission

Charters of rights in Australia: recent developments and prospects

Phil Lynch, Director, Human Rights Law Resource Centre

Session 2 – Current human rights issues in Australia

The race to the bottom: Understanding why our political leaders won’t lead on refugee debates

Associate Professor Peter van Onselen, Contributing Editor The Australian

Indigenous rights: where to after the National Human Rights Consultation?

Megan Davis, Director, Indigenous Law Centre, University of New South Wales

Say ‘YES’ to same sex marriage in Australia

Dr Adiva Sifris, Faculty of Law, Monash University

Session 3 – Limiting freedom

The rise of China and human rights

John Garnaut, Fairfax China Correspondent

Internet Freedom

Mr Iarla Flynn, Head of Public Policy and Government Affairs (Australia/NZ), Google

Session 4 – Human rights – the Latest from the UN

How the Convention on the Rights of Persons with Disabilities can improve the lives of those living with a disability

Professor Ron McCallum AO, Chair, UN Committee on the Rights of Persons with Disabilities and Professor of Law, Sydney Law School, University of Sydney

Climate change and human rights: whose rights, what protection?

Dr Jane McAdam, Director of International Law Programs, Gilbert + Tobin Centre of Public Law, University of New South Wales

Registration:

Registration costs for the conference:

Full registration – “early bird” to 1 June – $160 (full registration from 2 June will be $195)
NGOs – $95 (Multiple registrations $80)
Full-time students – $45 (limited number available, ID will be requested at the conference)

For further information and to register, see www.law.monash.edu.au/castancentre/events/2010/conference-2010.html.

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Human Rights Resources

HRLRC in the News

The Centre has published the following opinion pieces since the last Bulletin:

Philip Lynch, ‘Human Rights Framework: Icing Without the Cake’, ABC Online, 22 April 2010
Philip Lynch, ‘Loose with the Truth?’, ABC Online, 8 April 2010
Philip Lynch, ‘Parliament Has Last Say on Rights’, Australian Financial Review (Sydney), 26 March 2010

The Centre has featured in the following news reports since the last Bulletin:

James Eyers, ‘Bill of Rights Off the Table’, Australian Financial Review (Sydney), 22 April 2010
Selma Milovanovic, ‘Drugs Law at Odds with Rights Charter: Judges’, The Age (Melbourne), 26 March 2010

New Issue of Alternative Law Journal – ‘New Laws – Same Old Problems’

The Alternative Law Journal is a quarterly refereed journal which focuses on social justice, human rights, access to justice, progressive law reform and legal education. The Journal has a diverse readership among legal practitioners, judges, policy makers, law students and legal studies students.

The latest issue, themed New Laws – Same Old Problems, contains articles on the NT Intervention, the stigmatisation of mental illness, the Convention on the Rights of Persons with Disabilities, sex discrimination, the UPR of Fiji, and book reviews of a range of human rights texts.

For further information, including subscription and submission details, see www.altlj.org.

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Human Rights Jobs

Senior Human Rights Advisor, Victorian Human Rights and Equal Opportunity Commission

The Commission is seeking a lawyer with a background in human rights law and experience working in a public policy environment. This position will play an instrumental role in the Commission’s performance of its functions under the Charter of Human Rights and Responsibilities, with particular responsibility for developing the annual Charter report.

Applications close 2 May 2010. For further information, see www.humanrightscommission.vic.gov.au/about%20us/employment/.

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Foreign Correspondent

Developments from the UN and in International Human Rights Law and Practice

Human Rights Committee’s new General Comment on freedom of expression and opinion

In March 2010, the Human Rights Committee held its 98th session in New York. In addition to the review of states’ periodic reports, including our Tasman neighbours New Zealand, the Committee discussed the drafting of a new General Comment on art 19 of the ICCPR, on the subject of freedom of opinion and expression. The new General Comment is in draft form, but is expected to be adopted at the Committee’s next session.

Permanent Forum on Indigenous Issues

The 9th session of the UN Permanent Forum on Indigenous Issues began this week in New York. The theme of this session is Indigenous peoples: development with culture and identity, addressing articles 3 and 32 of the United Nations Declaration on the Rights of Indigenous Peoples. The start of the Forum was marked by two sets of exciting news.

First, in the opening session, the New Zealand Government announced its support for the Declaration on the Rights of Indigenous Peoples. This was met by cheers and a standing ovation from the approximately 2,000 people attending, including government delegates, NGOs, and Indigenous peoples. A Maori song of thanks was performed to celebrate. Whakamihi and congratulations to our Maori friends for the work they have done to shift the New Zealand Government’s position on this important piece of international law!

The next day at the Forum in New York, the US Ambassador, Susan Rice, announced that the US Government will review its position on the Declaration. She explained that the US Government would consult with Indian tribes and NGOs in conducting a review of the US position on the Declaration.

This marks significant progress for the Declaration, which was adopted by the UN General Assembly by a large majority of governments in September 2007. Australia, New Zealand, the USA, and Canada were the most notable governments to not support the original adoption of this instrument, although Australia’s position has since shifted, and now with the NZ Government’s support and signs of change coming from the US, the strength of this Declaration becomes even greater.

Volcano halts UN missions but nothing can stop the Human Rights Council review talks

As with so many during this last week, the unpronounceable volcano in Iceland has interrupted plans for many in the human rights community. The UN Independent Expert on Extreme Poverty was to conduct the first mission by a UN expert to Vietnam in more than 12 years, but was grounded before she could even begin. Likewise, the Independent Expert on the right to water and sanitation had her mission to Slovenia cancelled this week.

However, even a volcano was not enough to stop the one topic of conversation that seems never ending, and which will dominate the agenda until late next year – the five year review of the Human Rights Council. Diplomats and NGO representatives gathered in large numbers at an event organised by the Swiss Government this week in Montreux to debate the ways in which the Human Rights Council could be assessed and improved. This meeting was but one of a number of events organised by governments, to complement the open-ending working group established in October 2009 to conduct the review.

Meanwhile, in New York, the President of the General Assembly, Ali Abdussalam Treki of Libya, has also been progressing the General Assembly’s work on reviewing the Council (a parallel and similar review process). He informed governments recently that he had appointed two facilitators to conduct consultations on the review of the status of the Human Rights Council: Ambassador Christian Wenaweser of Liechtenstein and Ambassador Mohammed Loulichki of Morocco.

Whether or not the mandated five year review of the Human Rights Council will result in any great change is questionable at best, but it is hoped that some small improvements can be introduced and encouraged, for example greater use of human rights expertise. Watch this space, but don’t hold your breath.

Claire Mahon is an Australian international human rights lawyer based in Geneva, Switzerland, where she works as a consultant for NGOs and the UN. She is the Coordinator of the Project on Economic, Social and Cultural Rights at the Geneva Academy of International Humanitarian Law and Human Rights, Special Advisor to Mary Robinson, and an Adjunct Clinical Professor of Law at the University of Michigan Law School.

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If I Were Attorney-General…

A Real Walk for Justice

If I were Australia’s Attorney General for the day, I would begin the day with a walk for justice – a real one, taking in the sights and sounds of some of our most disadvantaged communities.

I would begin in the Alice Springs Town Camps and would spend the time talking to the Aboriginal people there and asking them how the Intervention is really affecting them and what they would have Government do to assist them.

Second on the itinerary would be some of the neighbourhoods identified in the Dropping Off the Edge: the Distribution of Disadvantage in Australia report – a joint project of Catholic Social Services and Jesuit Social Services, which maps national disadvantage and which found that just 1.7 per cent of postcodes and communities across Australia account for more than seven times their share of top rank positions on the major factors that cause intergenerational poverty. I would visit some of these people and ask them what their needs are and what they think can be done to address the high levels of crime and imprisonment that result from the unemployment, low income and low health that plague them.

Next would be the waiting rooms of our Children’s Courts, lower courts and Family Courts – the areas where the unlucky people who appear before our courts sit and tremble before their encounter with our justice system. I would speak with these people and ask them what brought them there and what could have been done to prevent them needing to appear before a judge.

Finally, I would visit some schools – primary schools, high schools, schools in rich areas and in poor, minority schools, special needs schools and Indigenous schools and I would find out what civic education looks like in those schools and what the kids there think of government, of the law and of justice.

After this walk for justice I would go back to my office and call together smart people, social justice minded people, creative thinkers and people who make things happen. I would banish political advisers, risk managers and bean counters. Together we would map out actions that would respond to the needs of the people who had spoken to me. We would develop plans in direct response to what they said was needed.

These might include a robust national bill of rights, more funding for access to justice for the disadvantaged, more civic education programs, more court diversion and alternate dispute resolution. It would be very likely to include reintroduction of the Racial Discrimination Act with respect to the Northern Territory Intervention. However, I cannot be certain of any of those outcomes, as they will depend on what I find people want and need.

When we were finished developing the ideas fully (a quick business in this parallel universe) I would call in my media spokesperson and tell her to blitz television, radio and print media with interviews and statements of me announcing in great detail every aspect of the new programs, all of which would commence immediately. I would make sure to tell every interviewer that these were core undertakings.

Nicky Friedman is Head of Pro Bono and Community Services with Allens Arthur Robinson

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New Human Rights Framework a Step in the Right Direction, but a Human Rights Act Deferred is Human Rights Denied

hrlrc — Wed, 21 Apr 2010 03:59:50 +0000

Human rights education and parliamentary engagement with human rights will be enhanced under a new “Human Rights Framework” for Australia, announced by the Attorney-General on 21 April 2010 in response to the recommendations of the National Human Rights Consultation.

The deferral of a Human Rights Act aside, there are a number of significant and valuable commitments contained in the new “Human Rights Framework”. These commitments include the establishment of a Joint Parliamentary Committee on Human Rights, which will be mandated to review legislation and conduct inquiries on human rights issues, and the development of a range of scrutiny mechanisms to ensure that Australian laws and polices are compatible with human rights. These measures will improve the development of laws, policies and practices and play an important role in ensuring that human rights are properly considered in both legislative and executive decision-making processes.

The Government has also committed to invest much needed funds in human rights education – providing $2 million over 4 years to the community sector and $6.6 million over the same period to the Australian Human Rights Commission. This reflects the recommendation of the National Human Rights Consultation Committee that “human rights education be the highest priority”. The Government will also engage in more extensive consultation on both international and domestic human rights issues with civil society. These are important initiatives and should not be discounted. If properly implemented, they will assist in further developing a culture of respect for human dignity and human rights in Australia.

Critically, however, the effectiveness of such measures will be substantially reduced without a robust enabling framework in the form of a comprehensive, judicially enforceable Human Rights Act. Without such an Act, many vulnerable people are left without human rights remedies and Australians are forced to look to international human rights standards rather than have regard to local human rights laws. As one homeless man said to me, ‘It is like icing without a cake’. Under the Rudd Government, he’ll have to wait at least another 4 years for that.

In announcing the Framework, the Attorney-General was correct in stating that the “enhancement of human rights should be done in a way that unites us” rather than divides us. Far from being divisive, however, a Human Rights Act would unite us through legal protection and institutional strengthening of those Australian democratic values we hold in common. As demonstrated by the Apology to the Stolen Generations, political leadership and vision can unite people, even on controversial issues. That is particularly the case when what is proposed is good, evidence-based policy that resonates deeply with our Australian commitment to respect, tolerance, fairness, freedom and the rule of law.

For the next 4 years at least, Australians will need to continue to look to international human rights laws and UN institutions in New York and Geneva for many of the human rights protections that should be enshrined in law here at home.

The campaign for a Human Rights Act that befits, protects and unites us has only just begun.

Philip Lynch is Executive Director of the Human Rights Law Resource Centre

Background

On 21 April 2010, the Attorney-General launched the Federal Government’s response to the National Human Rights Consultation, entitled ‘Australia’s Human Rights Framework.

The Government’s Framework fails to implement the key recommendation of the National Human Rights Consultation Report – supported by over 87% of a record 35,000 submissions – that Australia enact a federal Human Rights Act.

The Government’s Human Rights Framework does, however, contain a number of significant commitments to strengthen the promotion and protection of human rights in Australia:

establishing a new Parliamentary Joint Committee on Human Rights to provide greater scrutiny of legislation for compliance with Australia’s international human rights obligations;
requiring that each new Bill introduced into Federal Parliament is accompanied by a Statement of Compatibility with Australia’s international human rights obligations;
reviewing legislation, policies and practice for compliance with the seven core international human rights treaties to which Australia is party;
investing over $12 million over four years in various education initiatives to promote a greater understanding of human rights across the community;
developing a new National Action Plan on Human Rights to ‘outline future action for the promotion and protection of human rights’;
consolidating and harmonising federal anti-discrimination laws into a single Act; and
creating a ‘Human Rights Forum’ to enable whole-of-government engagement with non-government organisations on annual basis.

The Government has committed to review the Framework in 2014 to ‘assess its effectiveness in the promotion and protection of human rights in Australia’.

A copy of the ‘Human Rights Framework’ is available at www.ag.gov.au/humanrightsframework.

Further information about the National Human Rights Consultation, including the outcome of the Committee’s report, is available at /www.hrlrc.org.au/our-work/focus/national-consultation/.

An HRLRC opinion piece on the new Framework, published on ABC Online, is available at www.abc.net.au/unleashed/stories/s2879605.htm.

Special Children’s Rights Edition of the Human Rights Law Resource Centre Bulletin

hrlrc — Mon, 19 Apr 2010 04:11:12 +0000

This is a special edition of the Bulletin, which is a joint initiative of the Human Rights Law Resource Centre, the National Children’s and Youth Law Centre and Mallesons Stephen Jaques.

Download the full edition of the Bulletin in [PDF] or [Word].

NCYLC 2010 Children’s Law Awards
Convention on the Rights of the Child: The State of Play in Australia
Why Australia needs a National Children’s Commissioner
The Age of Criminal Responsibility
Youth Justice Conferencing: Achieving Restorative Justice?
Turning 18 and Leaving Care
Parens Patriae Jurisdiction
Anti-Terrorism Legislation and our Children
Special Commission of Inquiry into Child Protection in New South Wales
Children in Armed Conflict
Adding Teeth to CROC
Case notes on a range of recent decisions regarding children’s rights, including in relation to ‘the best interests of the child’ (Full Court of the Federal Court), the state’s obligations to unaccompanied minors seeking asylum (Federal Court), the appointment of an independent children’s lawyer (Family Court), and victims of crime assistance for children bullied at school (Supreme Court of Victoria)
‘If I were Attorney-General’ by Anna Copeland, Senior Lecturer at Murdoch University and Assistant Director of SCALES Community Legal Centre.

NCYLC 2010 Children’s Law Awards

To coincide with the 2010 Children’s Law Awards and Youth Week 2010, this special edition of the Human Rights Law Resource Centre Bulletin will consider the human rights and legal issues affecting children and young people.

The 2010 Children’s Law Awards recognise the achievements and commitment of those individuals and organisations who advance the legal rights and interests of children and young people across Australia. Organised by the National Children’s Youth and Law Centre (NCYLC) and Mallesons Stephen Jaques, the Awards were presented by the Honourable Catherine Branson QC, President of the Australian Human Rights Commission, on 16 April 2010.

The Awards aim to encourage real and lasting change for children, and to ensure that children, one of the most vulnerable groups in our society, receive the best possible start to life. The Awards recognise that the tireless efforts of those who work to represent, advocate for, and raise awareness of children’s legal rights are worthy of public praise and support.

By coinciding with the 2010 Children’s Law Awards, this special edition of the Bulletin aims to serve as a further means of highlighting and raising awareness of the legal and human rights issues facing children. The articles in this Bulletin will consider a few current children’s rights issues, including Australia’s implementation of the UN Convention on the Rights of the Child, why Australia needs a National Children’s Commissioner, the age of criminal responsibility and youth justice conferencing.

Winners of the 2010 Children’s Law Awards

Congratulations to the winners of the 2010 Children’s Law Awards.

The National Award for Outstanding Legal Representation of the Rights and Interests of Children & Young People

Winner: Robert Croser

Robert Croser has acted as a legal representative for children in the Adelaide Youth Court of since 1981. Over the last 10 years, the number of children found to be at risk of abuse or neglect, and the number of children under care and protection orders has continued to rise nationally. Rob has acted in the majority of applications made to the Youth Court under the Children’s Protection Act.

Rob has demonstrated an extraordinary ability to develop rapport with and gain the trust of the children he represents. Many of these children come from socially disadvantaged backgrounds and many have been subjected to abuse and neglect. They are the most vulnerable members of our community. Rob goes beyond his brief to ensure that appropriate services, whether counselling, educational or other supports are put into place before agreeing to the application being finalised.

The judges were very impressed with Rob Croser’s extraordinary commitment and accomplishments over 30 years. He has developed a strong rapport with, and earned the trust of, his clients – including children and young people from highly diverse and disadvantaged backgrounds. At the same time, he is regarded as a leading authority in this field by members of the judiciary, the public service and the Ministry.

The National Award for Outstanding Contribution to Advocacy in Policy or Law Reform to Advance the Legal Rights and Interests of Children & Young People

Winner: Youth Affairs Council of South Australia

The Youth Affairs Council of South Australia (YACSA) is a non-government body that has advocated for law and policy reform in the area of youth justice since its inception in the 1980s.

In 2009, YACSA campaigned for the State Government to reverse its decision not to replace the Magill Youth Training Centre (YTC) for remandees and detainees. The conditions at the Magill YTC for remandees and detainees had been described in The Australian as a “hellhole” and the UN Youth Ambassador, Chris Varney, described it as “a living children’s rights abuse hell”.

YACSA’s public campaign exposed the conditions within Magill YTC and drew attention to broader issues of children’s rights in relation to detention and rehabilitation. The campaign generated positive debate, included and empowered children, and was supported by a large number of organisations. In September 2009, the Government reversed its decision and announced it would proceed with a new facility, with the design to be based on explicit respect for children’s rights.

The judges were very impressed by YACSA’s development of innovative and effective strategies to win over community and political support in relation to the nature and conditions of juvenile detention (at Magill YTC), a notoriously challenging area of public policy. YACSA’s campaign was persistent, but subtle and respectful, and was inclusive and empowering for children and young people.

The Media Award for Raising Awareness of Important Children’s Legal Rights Issues

Winner: Louise Sutherland and the BURN project – A project of Legal Aid NSW in partnership with Community Prophets.

Louise Sutherland is a criminal legal practitioner at Legal Aid NSW. Louise took a lead role in the creation of the short film BURN and a related interactive website, a major Legal Aid campaign on youth crime prevention and education. Through her work as a criminal lawyer, Louise became aware that many children and young people misunderstood the criminal law and did not realise they could be held accountable for someone else’s actions if they participate in a crime as a group.

Louise, with the support of Legal Aid NSW, working in partnership with Community Prophets, coordinated the making of the short film BURN and the interactive website. BURN has been shown in 300 workshops to schools, youth services and clients of the Department of Juvenile Justice and has informed 13,000 school students and young people.

The judges were very impressed the consultative and inclusive nature of this innovative and successful project, which centrally involved children and young people in its development. A central part of Legal Aid NSW’s community legal education program, BURN has been shown to over one hundred schools and youth groups and informed over 13,000 students and young people.

National Finalists of the 2010 Children’s Law Award

The National Award for Outstanding Legal Representation of the Rights and Interests of Children & Young People

Joe Harman

Joe Harman has over 25 years experience representing the rights of children. A significant part of Joe’s practice involves representing children as an Independent Children’s Lawyer, in both Family Court and State Care jurisdiction. Joe is on the Legal Aid Commission panel for children’s representation. Legal Aid in Penrith says that Joe takes on the hard and really tough cases that others will not, and has helped to set a standard and contribute to a culture of legal aid in the area.

Joe has worked to improve the representation and handling of children’s issues. He was integral in the Children’s Case Program (CCP) pilot through the Parramatta Registry, and between 2003 and 2008 Joe participated on behalf of the Law Council in a national training program to educate lawyers in that scheme, presenting from an independent children’s lawyer perspective.

Anna Radonic

Anna Radonic has been the principal solicitor at Youthlaw, Young People’s Legal Rights Centre Inc Victoria since it was established in 2001. Anna has worked for over 25 years as a lawyer in the legal aid sector with a focus on the representation of children and young people. Prior to Youthlaw, she worked at the Youth Legal Service at Victoria Legal Aid and at the Victorian Aboriginal Legal Service, and as a locum at other inner-city community legal centres.

Anna represents vulnerable and disadvantaged children and young people in day to day matters and also conducts test case and strategic litigation. Anna has modelled service delivery and professionalism that is youth friendly, respectful, informative and responsive.

Clients love her down to earth, helpful manner even if it is to tell them to “get on that train and get to court”. One of her clients stated, “Anna really helped me out, I felt she was on my side, she changed my life”.

The National Award for Outstanding Contribution to Advocacy in Policy or Law Reform to advance the legal rights and interests of Children & Young People

Nicholas Tucker

Nicholas Tucker is the voluntary Chairperson of the Brisbane based Protect All Children Today (PACT) Board of Management. PACT co-ordinates a network of up to 70 trained volunteers across Queensland who provide support to children (and their families) who find themselves involved in Court proceedings (Magistrate and District Court).

As a direct result of a major research project undertaken by Nick in relation to children as witnesses following the introduction of the Evidence (Protection of Children Amendment ) Act 2003, PACT now provides feedback on the issues that negatively and positively impact a child’s ability to give evidence. This feedback is provided via the PACT volunteers and the PACT Board, to key stakeholders including the Department of Communities, Child Safety Services, the DPP, and the Chief Magistrate, Chief Judge and Associates. “Every single report from every volunteer is reviewed by the PACT Board”.

The provision of PACT’s evidence-based feedback has resulted in significant improvements for child witnesses, impacting on the District Judge Benchbook and best practice framework and the implementation of legislation. It has far reaching influence across a range of jurisdictions and has helped to reduce the anxiety and trauma experienced by child witnesses.

Katrina Wong

Katrina Wong is the convenor of the NSW Youth Justice Coalition and is the children’s solicitor at Marrickville Legal Centre.

As convenor of the Youth Justice Coalition, Katrina facilitates advocacy and cross-sector dialogue among professionals and decision makers about issues relating to the rights of young people in NSW. She convened and co-organised the hugely successful Rights Here, Rights Now youth forum and collated the information to complete a submission to the National Human Rights Consultation.

Katrina was also instrumental in the pivotal Bail Me Out report, a report on the study of young people in detention conducted by the Youth Justice Coalition. This report, and Katrina’s continued advocacy through media and other means, were driving factors behind the amendment to section 22A of the NSW Bail Act to increase access for young offenders applying for bail.

The Media Award for Raising Awareness of Important Children’s Legal Rights Issues

The Eastern Community Legal Centre and their “Human Rights are Aussie Rules” program

The Eastern Community Legal Centre in Victoria teaches children about human rights through the principles of fair play and good sportsmanship. It presents complicated human rights principles in way that is easy for children to relate to, rather than as abstract ideas or technical legal jargon.

Recognising the need for community education, Eastern Community Legal Centre developed a forty-minute performance, FRED’s Fair Play, focussing on the four FRED human rights principles (Freedom, Respect, Equality, and Dignity) outlined in the Victorian Charter of Human Rights and Responsibilities.

The play is accompanied by a one hour workshop and the popular Handball for Human Rights competition. It has been seen by thousands of students in schools, community festivals and sporting days across Victoria.

Please note that material in this Bulletin (“Material”) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of Mallesons Stephen Jaques or the views of the firm’s clients.

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Convention on the Rights of the Child: The State of Play in Australia

The United Nations Convention on the Rights of the Child (the “Convention”) aims to impose obligations upon state parties for the protection and development of children by safeguarding their fundamental economic, social, cultural and political human rights. Australia signed the Convention on 22 August 1990 and ratified it on 17 December 1990. Since then, policy statements at the national level have indicated that children’s rights are a priority. However, reports into the status of children and the law show that children’s rights continue to be an area of concern across all Australian jurisdictions; state, federal and territory. There is a significant disparity between governments’ public recognition of the importance of children’s rights and action taken to protect these rights. This article argues that the failure to provide effective implementation of the Convention rights stems from the failure to comprehensively and effectively incorporate the Convention into domestic law. This article considers the extent to which the Convention is incorporated into Australian law and recommends the adoption of a coordinated national approach. It also highlights three key areas of concern for children’s rights including youth justice, education and health.

Current Protections: Limitation of the State-Based Approach

One of the critical obligations under the Convention is that state parties must undertake all appropriate legislative and administrative measures for the domestic implementation of Convention rights.[1] Despite this, in Australia there is no national or uniform state codification of the Convention. As stated unanimously by the High Court in the case of Minister for Immigration and Ethnic Affairs v Teoh,[2] the rights conferred by the Convention are not enforceable against the Australian Government until they are codified into domestic law. As a result, the parliament, the executive government and the judicature are not formally bound by rights conferred under the Convention in formulating and enforcing legislation or policy. The federal system of governance in Australia also means that rights protected at a state level, without uniformity, create inequality based on geography. This is a particular concern when a Convention right is breached.[3]

It can be argued that efforts have been made recently to introduce protections for children based on the Convention through the Victorian and the Australian Capital Territory (“ACT”) Human Rights Acts where children are afforded special protection on the basis of their vulnerabilities.[4] In the ACT, for example, this extends to discrimination on the basis of:

race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.[5]

Courts can hear cases of alleged violations or interference with these rights. Further, in these jurisdictions, all policy and decision making must be consistent with the rights protected under the Human Rights Acts, unless a report is tabled in parliament to justify otherwise. However significant concerns remain as to the efficacy of these court and legislative mechanisms to provide effective protection to children.[6] Although Victoria and the ACT should be commended for incorporating these rights into their legislation, these Human Rights Acts fall short of a considered and comprehensive incorporation of the integrated principles contained in the Convention and fail to take advantage of the growing jurisprudence internationally on child rights that has built around the Convention. This legislation also creates further inequality as there are no comparable provisions in any other state or territory. Additionally, despite the recommendation for a national Human Rights Act in Australia following the National Human Rights Consultation in 2009, there is no indication that one will be enacted in the foreseeable future.

The only other example of a national and uniform introduction of a Convention principle is the application of the principle found in Article 3(1), which provides that in all actions concerning children, the best interests of the child must be a primary consideration. This consideration is paramount in determinations of parental care and responsibility for children under the Commonwealth Family Law Act 1975 and for the care and protection of children in all states and territories.[7] However, there are critiques of the implementation of the ‘best interests’ principle.[8] Beyond the contentious issues of child protection and family law, other areas in which Australian protection of children’s rights is significantly out of step with the Convention include youth justice, education and health, in particular due to the disparity between those in remote and indigenous communities and their metropolitan and non-indigenous peers.

National Implementation

This article recommends a national implementation of the Convention, a position which is supported by the United Nations Committee on the Rights of the Child (the “Committee”). In 2005, the Committee expressed concern over Australia’s lack of a national approach to addressing the problems of inequality in education, youth homelessness, alternate care and juvenile justice for indigenous children.[9] Just over four years after these comments were made the Council of Australian Governments (“COAG”) adopted a national framework for protecting children, raising hopes of better coordination and collaboration between the Federal, state and territory governments in the area of child protection.[10] The framework recognizes the need for a national approach to child protection and family support services. The challenge of achieving coordination between government and across portfolio areas is daunting, particularly without an explicit overarching commitment to a comprehensive policy framework such as that offered by the Convention. Despite the commitment and the encouraging reference to the Convention in the underlying principles of the Framework, no assurance has been made to the incorporation of the Convention rights in any measurable or accountable manner.

A functional partnership between the Federal and state governments on child protection will require effective research and analysis of underlying causes. This will touch many of the basic survival rights contained in the Convention (health, social security, family, appropriate care) and will impact on other development rights also addressed in the Convention (education, alternative care, periodic review, right to information and the right to be heard). The international child rights community is currently working on the development of international standards in the area of alternative care to build best practice across the world. However, Australia still lacks a practical framework for identifying and implementing best practice between states and territories in these areas.[11]

Particular attention is required to provide for the effective participation of children and young people in decision making processes that affect them. This must be addressed in the political, legal and judicial systems to effectively implement the Convention in Australia.[12] Such a scheme must provide effective legal recourse for children whose rights are not adequately protected and build awareness of the need to ensure fundamental rights are considered at all levels of government in policy, legislation and decision making. As a result, Australia would be better placed to improve child protection schemes and address issues of youth justice, disparity in education and health care.

Youth Justice

Australia was a leader in international best practice for youth justice late last century, but now falls short of the required international standards in a number of key aspects, most notably the rates of detention of indigenous children and commitment to effective diversionary and rehabilitative practice.

Under the Convention, children are recognised as vulnerable members of society in need of special safeguards and care,[13] a conclusion similarly reached by the ACT Human Rights Act 2004. The key Convention principles relating to juvenile justice are found in the paragraphs of Article 37:

Article 37(a) which sets out human rights and principles for the treatment of detained children;
Article 37(b) which provides that children are to be detained as a measure of last resort and for the shortest possible time; and
Article 37(c) according to which detained children must be separated from adult offenders.

The first issue which must be addressed is that Australia has a reservation to Article 37(c) and it is current practice to detain children and adults without segregation. For example in Queensland, children aged 17 can be detained in adult prisons, rather than juvenile centres, and children aged 17 are able to be tried as adults. Reports indicate that these children, even those segregated from the main prison community because of their age, are exposed to the traumatic effects of adult prisons with serious mental and psychological consequences for their long term development.[14]

The second issue, which has been commented on by the Committee,[15] is that Western Australia has mandatory sentencing laws, which can apply to juveniles and are therefore in contravention of the ‘last resort’ principle in detaining children. This ‘last resort’ principle was also potentially breached by the 2007 amendment to section 22A of the Bail Act 1978 (NSW) which restricted the number of bail applications an individual can make, with limited exceptions. Consequently, the number of juveniles on remand increased significantly. Additionally, the subsequent overcrowding of juveniles detention centres may also lead to the transfer of juveniles to adult detention centres.[16]

These examples make it clear that reform must be implemented at the national level.

Education

Education features extensively under the Convention: eight of the fifty-four articles refer to education as fundamental to the rights of the child. It is also an area in which disparity between Indigenous and non-Indigenous children was a major focus of the Committee.

The National Assessment Program for Literacy and Numeracy National Summary Report: Achievement in Reading, Writing, Language Conventions and Numeracy 2009[17] illustrates the stark disparity in academic performance between Indigenous and non-Indigenous children. Generally, approximately thirty percent of Indigenous children fall below the national minimum average, whereas only approximately ten percent of non-Indigenous children fall below the same threshold. Further, research conducted by the Australian National University found that five-year-old Aboriginal children are only one year behind their non-Indigenous counterparts and that this gap doubles by the time the children are in late primary school and early secondary school.[18] This indicates that access, quality and utilisation of education decreases as the affected children mature.

It was suggested by the Non-Government Report on the Implementation of the United Nations Convention on the Rights of the Child in Australia (2005) that a national strategy is required to address this disparity. The current work on the development of a National Curriculum[19] represents an opportunity to commence the broader strategic task – if it allows for the need to recognise and address cultural, linguistic and social issues faced by children from Indigenous families and communities.

Health

A common thread between youth justice, education and health outcomes in Australia is the evident disadvantage between Indigenous and non-Indigenous children. The challenge is particularly evident in the Northern Territory.[20] In addition to the cultural and social issues, geography creates a natural barrier to equality when it comes to access to healthcare. One startling statistic which highlights the disparity is that the Indigenous infant mortality rate is nearly three times that of the general population.[21]

Indigenous health care issues, received attention in the second half of 2009 with the release of the Final Report by the National Health and Hospitals Reform Commission. The summary recommendations for Indigenous Health care highlight the importance of establishing a national authority to deliver culturally appropriate care. Other recommendations included increasing investment into training a specialised Indigenous health workforce. These steps still require an internationally recognised framework for measurement and evaluation to ensure that we fulfil our obligations under the Convention.

Conclusion

Without a coordinated national approach to the implementation of Convention rights, Australia will fall short of the expectations of the UN Committee. Consistent incorporation of Convention rights into Australian law and policy has the potential to enhance and promote the wellbeing of children, as well as improve outcomes for child protection, development and education. A national implementation would not only centralise resources and coordination but would ensure human rights are equally respected irrespective of state and territory borders. The implementation and enforcement of these rights on a national level could also provide greater transparency and accountability for the protection of fundamental children’s rights.

Amelia Avery-Williams (Summer Clerk) and Alex Feldman (Solicitor), Mallesons Stephen Jaques

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Why Australia needs a National Children’s Commissioner

The United Nations Convention on the Rights of the Child (“the Convention”) is the most widely accepted human rights treaty in history, ratified by 193 State Parties. However, Australia does not have a mechanism supported by the Federal Government for ensuring the protections it affords are translated into practical outcomes. Instead, responsibility for decision making in respect of children is often divided between and across governments. Significant gaps exist. The burden of oversight in addressing the gaps often falls to under-resourced community organisations and charities.

For many children in Australia, this situation may not result in any readily-identifiable disadvantage. However, for Indigenous children, those in out of home care, in contact with the youth justice system, recently arrived, the victims of sexual and physical abuse, involved in family breakdown and conflict, facing disadvantage in access to education, disability support and living in poverty, the need for sustained and effective monitoring and advocacy is very real.

There have been calls for the appointment of a National Children’s Commissioner for over fifteen years. This article considers the importance and the possible role of a National Children’s Commissioner.

Reasons why Australia needs a Child Commissioner

In ratifying the Convention, the Australian Government made a commitment to protect and promote children’s rights in Australia. As demonstrated by numerous reports,[22] there is more work to be done to ensure practical implementation of the Convention in Australia, particularly in areas concerning Indigenous children, child protection, youth justice and youth homelessness. As a nation, we are not fulfilling our responsibilities to these children. Reform in these areas must remain a priority.

Children and young people are in a vulnerable position when it comes to engaging in social and legal reform and often lack the skills, experience and political clout to independently address the issues identified above. They are not represented in the electoral process; they have not yet been able to form an effective lobbying force; they do not wield power or hold large resources; they are not consulted as key stakeholders in society. A National Children’s Commissioner would be a small step to address this situation – to use position, knowledge and skills to engage in advocacy and to support measures that address these short-comings.

The Australian Human Rights Commission, State Children’s Commissioners and the Commonwealth Ombudsman – Isn’t This Enough?

Currently, children’s commissioners/guardians exist in all states and territories in Australia. These Commissioners have made a positive start to advocate for the rights and interests of children and young people. However, state Commissioners have limited impact on federal policy and legislation. Federal issues such as immigration, social security and family law are some of the key issues for children, yet outside the mandate of the existing statutory state and territory positions. A National Commissioner would have a specific role in addressing national issues, with the opportunity to collaborate with state Commissioners to avoid duplication and maximise the impact of advocacy.

The Australian Human Rights Commission has never been provided with funding to meet its mandate to monitor the implementation of the Convention by the Federal Government. Notwithstanding this neglect, the Commission has undertaken powerful and influential research and advocacy on behalf of children, such as Seen and Heard, Bringing Them Home and A Last Resort the latter two considering the stolen generation and immigration.[23] However adult and child rights issues cannot always be addressed together. Some issues call for a dedicated child-specific approach (out of home care and child protection); others still require attention that recognises the particular vulnerabilities of children in a broader human rights context (consider the different principles applying to youth justice).

Current arrangements for the protection of children’s rights through bodies such as the Australian Human Rights Commission also do not afford appropriate visibility and ongoing commitment to children and young people. As a separate body with a specific mandate to exclusively focus on children and young people, a National Children’s Commissioner could provide national visibility to child rights and give children and young people a significant voice on national issues (cyber safety; young people’s experience of violence and homelessness, obesity, to name a few recent examples).

The Commonwealth Ombudsman’s complaints procedure has no specific entry or procedures established to effectively handle children’s complaints. A National Children’s Commissioner could implement a complaints procedure designed for children to use. This would both improve services relevant to children and encourage participation and recognition of the contribution of children and young people.

Global Progress to Protect Children’s Rights

The case for a National Children’s Commissioner is strengthened by the global movement to protect children’s rights. National Children’s Commissioners exist in many countries, including New Zealand (established 1989), England (established 2004), Wales (established 2001), Scotland (established 2004), Belgium (established 1998) and Northern Ireland (established 2003). In these countries, Commissioners have a mandate to safeguard and promote the rights and best interests of children and young people. Experiences from these countries highlight the need for formal and practical independence of the Commissioner including appropriate funding and reporting mechanisms.

Role of a National Children’s Commissioner

To be effective, an Australian Commissioner for Children should be an independent statutory body with responsibility for a broad range of tasks and strong connections to community networks. The 2008 Bill suggests, for example:

Monitoring and evaluating Australia’s compliance with the Convention, in consultation with other organisations and in particular, preparing a report to the UN Committee on the Rights of the Child;
Monitoring, reviewing and commenting on laws, policies, service standards and practices that affect young Australians;
Conducting inquiries to assist in and drive law reform;
Developing consultation mechanisms and encouraging youth participation; and
Developing mechanisms to ensure best practice service standards for children’s and youth programs, such as a National Code for the Protection of Children.

Framework for the National Commissioner

Integral to its independence, a Commissioner must have the ability to determine its own priorities. Its functions could be supported by statutory powers including:

initiating public inquiries;
subpoena witnesses and documents;
acting or identifying the need for a legal guardian for children such as unaccompanied child refugees;
making reports and recommendations to Parliament on any issue relating to children and young people; and
intervening in court proceedings involving rights of children and young people.

Structure of the Commissioner for Children:

Source: The essential components are sourced from Defence for Children International Australia, Towards Taking Australia’s Children and Young People Seriously: A Commissioner for Children and Young People, 1998, at 15 February 2010.

Conclusion

This paper has briefly outlined the need for increased protection and advocacy for children and identified one practical step towards achieving this. An independent, properly resourced and authoritative National Children’s Commissioner would be an invaluable resource, both for children and for the government in meeting its obligations under the Convention.

As a nation, we should be able to admit our mistakes and work to address the harm that is still caused to some of our most vulnerable. Now is the time to move forward.

Melissa Dejong (Solicitor and secondee to the National Children’s and Youth Law Centre), Mallesons Stephen Jaques and Subhaga Amarasekara.

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The Age of Criminal Responsibility

In November 2009, newspapers around Australia published outraged reports that Western Australian police had charged a twelve year old Aboriginal boy with receiving a stolen Freddo Frog. While the role of race in the story cannot be ignored, the resonance of the tale also lay in the youth of the offender and the childishness of the offence. As his lawyer said, “It’s scandalous that a 12-year-old child should be subject to prosecution for a case of this type”.[24] It is widely accepted in today’s society that children who break the law should be treated differently than their adult counterparts. Yet under Australian law, children as young as ten can be held criminally responsible for their actions, despite international condemnation that this age is too low.

This paper examines the international position on the minimum age of responsibility, noting that Australia’s position is now out of step with international best practice. It then considers how the youth justice system can address social fears that eliminating responsibility for children will produce an accountability vacuum, suggesting that an increase in the minimum age of responsibility is not incompatible with holding children accountable for their actions.

In Australia and internationally, child offenders are seen to have a special status stemming from their age and attendant assumed lack of maturity. Under Article 40(3)(a) of the United Nations Convention on the Rights of the Child (the “Convention”), governments are required to set a minimum age below which children cannot be held criminally responsible. This obligation applies to Australia, which became a party to the Convention on 17 December 1990. The Convention itself does not specify an appropriate minimum age, thus leaving individual states a degree of discretion to determine what age of responsibility to adopt. However, this discretion is not unlimited. Article 4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (also known as “The Beijing Rules”) requires that the minimum age “shall not be fixed at too low an age level” and shall be determined bearing in mind children’s proven levels of “emotional, mental and intellectual maturity”. This has been interpreted and applied differently across the international community, with the result that there is considerable difference in the minimum ages of criminal responsibility around the world.

In all Australian jurisdictions, the minimum age is now set at 10 years.[25] This is on par with England, Wales and Northern Ireland. However, this age is lower than many other countries. It is difficult to obtain comprehensive and up-to-date data on the age of criminal responsibility across the globe, but analysis of 2009 Concluding Observations of the United Nations Committee on the Rights of the Child (“Committee”) shows that the minimum age ranges widely, from seven (Pakistan, Qatar) to fifteen (Philippines) and sixteen (Bolivia, Mozambique). In fact, as far back as 1997, the Committee stated in its Concluding Observations on Australia that the minimum age of ten years was too low and should be increased. This view was reiterated in a General Comment published by the Committee in 2007 where it was said that a minimum age of criminal responsibility below twelve years is not considered to be internationally acceptable. Given these criticisms and the international trend towards increasing the minimum age of criminal responsibility, the question must be asked whether Australia’s minimum age should be increased.

Before discussing the arguments for and against raising the minimum age, an additional factor should be considered. Across Australia there is an extra layer of protection for young offenders known as the principle of doli incapax, which is a legal presumption that children aged between ten and fourteen are not capable of being found guilty of crimes. However, this presumption offers limited protection as it can be rebutted by the prosecution showing that the accused understood their act was ’seriously wrong’ and not just naughty or mischievous. The effectiveness of this measure in protecting children has also been questioned by some commentators such as Dr. Ben Matthews, who notes that the presumption is often ignored or, when it is recognised, is easily rebutted.[26]

Increasing Australia’s Minimum Age

Generally, legislative and policy reform in this area has been directed towards increasing children’s rights and moving away from the more punitive measures associated with the adult criminal justice system. In favour of this move, human rights groups have stressed such factors as the incongruence between the ages at which people are given the rights to vote, drink alcohol and drive motor vehicles, compared to the age at which criminal responsibility can be imposed on them.

However, there are dissenting voices, particularly from victims’ rights groups, suggesting that a harsher approach should be adopted towards young offenders. High profile cases, such as the Bulger killing in England, at least superficially fuel arguments that children have the capacity to understand the wrongfulness of their actions despite their age. Added to this are suggestions that raising the minimum age of responsibility will make adult criminals more likely to engage children to do their ‘dirty work’ for them, given that the young person is beyond the reach of the law.

These concerns can be partly addressed when effective social welfare measures are in place that will provide for a child’s serious behavioural issues to be addressed without resorting to adjudication of criminal responsibility. In popular parlance, raising the minimum age would not necessarily give a free pass to children to commit crime.

In England and Wales, for example, although children under ten cannot be charged with an offence, the crime is recorded by police and the child can be made the subject of a child safety order and placed under the supervision of social workers or a local multi-agency team.[27]

In Brazil, where the minimum age is eighteen, a distinction is made between persons under twelve years (who are classified as children) and persons between twelve and eighteen (who are classified as adolescents).[28] Under the relevant legislation, if a child under twelve commits a crime they will be dealt with by a Custody Council which is non-jurisdictional and aims to protect the child. But if an adolescent, between twelve and eighteen, commits a crime, a judge can impose a punishment ranging from admonition or repairing the damage caused through to probation and incarceration (in extreme cases).[29]

These punishments are deemed to be ’socio-educational’ measures aimed at socially reintegrating the adolescent and preventing them from committing future crimes. Already, similar measures are in place in Australian jurisdictions to deal with young offenders above the age of ten, with the focus on restorative justice rather than retribution and punitive sanctions.

Australia remains out-of-step with the UN Committee on the Rights of the Child’s recommendations that Australia increase its minimum age for criminal responsibility.

There is no apparent government initiative to reconsider the age of criminal responsibility although there are often reviews of youth justice policy and strategies.[30] This is partly due to the increasing focus on restorative justice and the need for more effective and consistent use of diversionary programs and strategies for dealing with crime and in light of the ongoing over-representation of young Indigenous offenders in correctional detention. How future reform in this area will balance the competing considerations is open to speculation.

Philippa Macaskill (Summer Clerk) and Natalie Zerial (Solicitor), Mallesons Stephen Jaques

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Youth Justice Conferencing: Achieving Restorative Justice?

An analysis of Australia and New Zealand

Traditionally, the two main schools of thought on youth justice have been the welfare model and the justice model. The welfare model focuses on offender rehabilitation, whereas the justice model emphasises due process and accountability. Restorative justice is a more recent approach which can be seen as an attempt to reconcile these two approaches, through a focus on crime as harm done to individuals and communities, rather than to the State. As such, a key feature of restorative justice is the inclusion of the victim in the decision-making process. As it has been applied in the youth justice field, it involves the mediation of concerns between the victim, the offender and their respective families and communities to achieve reconciliation, restitution and rehabilitation.

The appropriate treatment of young offenders has been presented as a challenge to the traditional criminal justice system. As Andrew Becroft, Principal Youth Court Judge for New Zealand, stated in 2005 at the Commonwealth Law Conference in London:

Youth offenders are not “small adults” to whom a cut-down version of the adult Court may be applied, but are young people at varying states of emotional, intellectual and cognitive immaturity.[31]

The most prominent example of these principles of restorative justice being applied in the youth justice system has been the introduction of youth justice conferencing as an alternative to a formal court sentencing process.

New Zealand

The practical use of restorative justice concepts has been firmly established through the introduction in New Zealand of the Children, Young Persons and Their Families Act (“CYPF Act”). The CYPF Act was considered a groundbreaking piece of legislation when it passed into law in 1989. It aimed to provide the means by which to prevent and address child and youth offending. The CYPF Act details principles specifically relevant to youth justice, including the principle that unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter.[32] The Family Group Conference (“FGC”) is the practical application of restorative justice principles and is considered to be the cornerstone of the legislation.

FGC allows for a transfer of the State’s power to the family, victim and wider community, although this is subject to the Youth Court’s power to approve and monitor any decisions that are made. Approximately twenty four percent of young offenders in New Zealand are dealt with through this mechanism.[33] There are six situations under the CYPF Act where an FGC must be held and unless they are arrested, a young person must appear at an FGC before they are summoned to appear in the Youth Court.

The philosophy behind the FGC recognises that young people “may be immature, vulnerable and are still very much part of and influenced by their families”.[34] The process used varies depending on the young person and the specialist Youth Justice Coordinator facilitating the FGC. However the intended outcome remains the same: to produce a negotiated, community response to the offence. This is facilitated through the presence of the young person, his or her advocate, members of the family and whoever they invite, the victim (and often their representative), the police, the social worker and the Youth Justice Coordinator.

Australia

Each Australian state and territory has some form of youth conferencing scheme. Daly estimates that in recent years the annual number of young people undergoing conferencing is somewhere between 5300 and 5800.[35] Although it varies slightly between each jurisdiction, the conferences primarily involve the young offender, his or her supporters, the victim, his or her supporters, a police officer and the conference convenor. It is expected that the conference be conducted in a compassionate and understanding environment as opposed to the adversarial nature of a court hearing. The final undertakings to be completed by the young offender are discussed and agreed to by the offender and the victim.

The initial approach adopted in Australia, referred to as the “Wagga Wagga model”, was a process organised and run by police. Report No. 84 by the Australian Law Reform Commission (“ALRC”) noted criticisms of the extent of police participation in the conferences. In some cases young people may be intimidated by the police presence. Another concern was that the young person may not be as open to the restorative process if they viewed the police authority warily. In these cases young people can be hostile and non co-operative. The ALRC discussed the desirability of conference administration by independent bodies such as a judicial officer, youth worker or community based lawyer. Additionally, the Report acknowledged the need to monitor the manner in which the conference is held to avoid oppressive or intimidating conduct.[36] The ALRC favoured the approach where conferences are organised by organisations separate from the police, such as government agencies responsible for youth justice.

In New South Wales (“NSW”), the Department of Juvenile Justice is responsible for the operation of youth justice conferences.[37] An additional incentive for diversion from the court process exists for summary offences that do not involve violence where NSW Police can give a young person a warning as an alternative to arrest. When a young person is arrested, the Police must consider whether they are eligible for a caution or a youth justice conference. However, for them to be ‘eligible’ to attend a conference they must admit the offence. In deciding whether a young person would be cautioned, referred to a youth conference or charged, a pre-determined set of criteria must be applied by the police. This includes the seriousness of the offence, whether violence was involved, harm caused to the victim and the individual’s previous history of offending and cautions or conferencing. One unique aspect of the NSW scheme is the identity of conference convenors. People who live and work in the local communities are contracted to organise and facilitate youth justice conferences. Recruitment, selection and training aims to work co-operatively with Indigenous community members and community people from non-English speaking backgrounds.

Achieving Objectives?

Conferencing as an approach to youth justice has many different objectives. In accordance with the philosophy of restorative justice, conferences are a means for a young offender to accept responsibility, to make amends with the victim and to avoid the stigma associated with criminal prosecution and to discourage reoffending. Several studies have been undertaken to determine whether these objectives are being achieved.

Rates of Recidivism

At this stage in Australia, there is no clear and consistent evidence that restorative justice diversion methods reduce the rate of recidivism generally. In Victoria, a study found no significant difference in reoffending.[38] However, in the Australian Capital Territory the first report on recidivism found that there was a thirty eight percent decrease in reoffending for young violent offenders, but very little difference for young property offenders.[39] This statistic is particularly significant given the relatively large numbers of young offenders involved in the study and because each offence type was tested separately. In NSW, a Bureau of Crime Statistics and Research study found that there were reduced rates of recidivism in young people cautioned or after a youth justice conference.[40] However, the study noted that the reoffending rates were higher than other studies in South Australia and Queensland for similar diversionary measures.

New Zealand research has shown that recidivism rates for young people are lowest when they are dealt with at the lowest possible level in the criminal justice system and when they receive less severe outcomes.[41] It is better for the individual and the community that the Youth Court hand out a lower sentence, or for police to divert from more formal processes, than to send the young person to an FGC or for a harsher sentence to be imposed.

An alternative method for evaluating reoffending rates considered the nature of the conference itself and its effect on reoffending. A New Zealand study reported that conferences were more successful where a young offender had shown remorse, had not felt shamed, had participated in the conference and accepted its outcomes and where they had met with and apologised to the victim.[42] In light of this evidence, it would appear that the non-police conferences have greater capacity to achieve the objectives when facilitated professionally and there is meaningful engagement by the young person.

However without clear evidence of dramatically lower rates of reoffending, the conferences may be seen as furthering the broader objectives of the restorative justice movement, which fundamentally alter the roles played by police, the courts, the offender, family members of the offender and victims.[43]

Widening Social Participation

Widening the social participation in youth justice can be seen as one of the broader objectives of restorative justice. Conferences offer victims an opportunity to address the harm they have suffered and possibly achieve restitution. In Queensland over ninety percent of both victims and parents indicated satisfaction with the conference.[44] In NSW, research shows that at least ninety-one percent believed that the conference was ‘somewhat fair’ or ‘very fair’ to the victim.[45] In WA the level of satisfaction is slightly lower at eighty-three percent.[46]

In New Zealand, there is appears to be an inherent conflict between the suggestion that the victim is at the heart of this process and the CYPF Act, which primarily focuses offenders and their families. Interestingly, the NZ statistics show that on average only half of victims are satisfied with FGC outcomes, whereas over 80 percent of police, offenders and offenders’ families are happy.[47]

Another example of social participation seen in New Zealand is the increased empowerment of Mäori. While the FGC does not incorporate an explicitly indigenous method of dispute resolution, one of the important elements of a Mäori model of justice is an emphasis on consensus and involvement of the community. These ideas are compatible with the FGC model and can be seen to help achieve the objectives of restorative justice in New Zealand.

Response to Criticisms/Proposals

Youth justice conferences are still evolving in response to research and critical analysis. It would appear that progress has been made in improving the outcomes achieved by conferences, there is still work to be done in this area.

As previously mentioned, the ALRC’s preference for the non-police model for youth conferencing has been adopted by some Australian States.[48] The ALRC also recommended the adoption of a set of national standards for Australia, which should include best practice guidelines for family group conferencing with a compliance monitoring system. Currently, though some ALRC recommendations have been adopted, there is still a lack of national consistency in this area.

It has also been shown from research studies undertaken in this area that the training of conference facilitators should take into account the different responses of both male and female offenders, offenders from different socio-economic levels, and the problems with a police-conducted model.

Preliminary research from New Zealand indicates that girls experience family group conferences in a different way to their male counterparts. For example, fifty-one percent of females, compared with seventy-five percent of males indicated they could understand how the victim felt.

However, females were less likely to feel that they had been treated fairly.[49] These findings indicate that a more nuanced approach to conferences is required and could be achieved by additional training for conference facilitators.

In New Zealand, there has also been criticism of the lack of proper assessments of the psychological, psychiatric, education and health factors that affect young offenders. The 2009 Health and Education Assessment Programme is an initiative that aims to address this criticism. It brings together several government departments who will provide recommendations to be considered at the FGC.[50] An assessment considering health, disability and education factors is carried out on each young offender who is referred to their first FGC and is considered to be at high risk of reoffending. A written report containing recommendations arising from the assessments is then brought to the FGC for discussion. This approach further enables FGC decision-making to be tailored to address issues that are contributing to the offending and allows FGC outcomes to be further tailored to the needs of the individual offender.

Conclusion

The introduction of youth justice conferencing to Australia and New Zealand in the late 1980’s and early 1990’s has been a radical development. The use of restorative justice concepts through this mechanism increases the possibility that the causes of re-offending can be positively addressed and an outcome that is satisfying for all affected can be achieved.

Tami Sokol (Summer Clerk) and Alissa McKeagg (Solicitor), Mallesons Stephen Jaques

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Turning 18 and Leaving Care

The Need for Transitional Support

Children leaving care are one of the most vulnerable groups in society. Not only are they required to make the transition to adulthood quicker and at a far younger age than the average Australian, but often they must do so released from a support system upon which they may have been reliant on for financial, emotional and developmental support for most of their life. By continuing to provide appropriate and targeted assistance at this point, the likelihood that care-leavers will continue to have to rely on other forms of social assistance in the long term can be reduced.[51] This article will consider the state legislative regimes[52] that regulate the transition of children leaving care and the adequacy of the plans provided for those children. Care leavers should be provided with a clear plan of transition, should be assisted in implementing this plan and be given access to the services necessary to help them build a successful and independent life.

The CREATE Foundation 2009 Report Card found that sixty-five percent of young people leaving care do not have transition plans developed for them.[53] The Report Card found that the regulations governing the transition to independence do not necessarily result in actions that assist care-leavers. The CREATE Foundation is a national not for profit organization that represents the voices of children and young people in out of home care.

When is a Plan Made and to what Extent?

Formulating a plan for a care-leaver’s transition to independence is a vital preliminary step. In New South Wales (“NSW”), the agency supervising a care-leaver must prepare a plan, in consultation with that person, before they leave care.[54] Guidelines prepared under the Children and Young Persons (Care and Protection) Act 1998 (NSW) in 2008 specify that planning should commence at least twelve months before leaving care. In contrast, many other states, such as Queensland and South Australia, specify that planning should normally begin at age fifteen. The NSW approach is effective if there is a pre-determined date for leaving care, but will disadvantage some care-leavers if they leave care unexpectedly.

The NSW Guidelines also specify that the plan should generally cover accommodation, employment and income support, access to education and training, knowledge and understanding of personal history, including cultural background, contact with family members and independent living skills, including financial management and health and lifestyle issues. Whilst these are important issues, it is crucial that every plan is tailored for each care-leaver to best meet their needs and that it specifies, as far as can be determined, the agencies and contacts that can provide the resources necessary for its implementation.

Studies have found that there is a lack of clarity regarding who should monitor the development and implementation of plans. It is important that specific case work positions are established to assume responsibility for overseeing these processes. While such positions have been created in some states, there needs to be more consistency across Australia.

The Duration and Effectiveness of After-Care Assistance

Once a plan has been created, the next issue is the extent of support and duration of after care assistance. In NSW, a care-leaver must be given appropriate assistance until they reach the age of twenty-five (or later in special circumstances).[55] This is similar to the Northern Territory, South Australia and Western Australia. However, other states provide a shorter duration, such as Victoria and Tasmania, which only extend support until the age of twenty-one.

For support to be effective and accessible, formal associations and partnerships between relevant government departments and agencies are important. For example, it would be logical to have connections between child protection and the disability services, health, housing, education and employment departments, just to name a few.

The CREATE 2009 Report Card found that most jurisdictions have established partnerships between child protection services and those responsible for disability services and housing. For example, in NSW, there is a formal agreement between the DOCS and NSW Housing which targets, amongst others, young people aged under twenty who are leaving or who have left care and have no family support. They conducted a shared access trial in Maitland to provide stable housing for those who were assessed as needing additional support. Arrangements like these will make support much more accessible for care-leavers.

Monitoring

Whilst it is pleasing that all states and territories have regulation in these areas, to varying degrees, it is crucial that care-leavers actually receive the support and guidance that the regulations stipulate. Ensuring this support requires effective monitoring and accountability. For example, it is concerning that the CREATE 2009 Report Card found that only Western Australia was able to specify how many young people actually had a current plan – seventy-three percent of those transitioning in 2007-08.

Furthermore, current legislation in many states and territories does not require monitoring of the development of care-leavers. No monitoring is conducted as to whether care-leavers complete secondary school, find stable accommodation or find employment. Departments should be responsible for following up with care-leavers and gathering sufficient information on their progress towards independence. This helps not only to understand the care-leaver’s particular requirements, but also to ensure they are safely transitioning to independence.

Conclusion

Although the purpose of leaving care is for care-leavers to become self-sustaining and independent, this does not happen immediately. By formulating an individualised plan, assisting in the performance of the plan until it is completed and sufficiently monitoring outcomes to ensure support is effective, this daunting and challenging time can be made much easier for care-leavers. Ongoing support for care-leavers will also benefit the nation as a whole. As CREATE’s 2008 Report Card concluded “a relatively small investment now will save a huge social and economic cost in the future”.[56]

Nicholas Dowsley (Solicitor), Mallesons Stephen Jaques

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Parens Patriae Jurisdiction

Parens Patriae and the Welfare Jurisdiction of the Family Court

Parens patriae was the term originally used to describe the ancient common law doctrine of the protection of infants and persons of unsound mind by the Crown. Its literal translation from the Latin is ‘parent of the nation’. As a political development, its modern use in Australia and other common law jurisdictions can be traced to 16th Century England. It involved the Crown taking responsibility for those unable to care for themselves. This article will discuss the modern application of parens partriae particularly in cases involving medical treatment of children.

As a prerogative right of the Crown it was delegated to the Lord Chancellor who exercised the parens patriae jurisdiction in the Courts of the Chancery in England. Over time parens patriae came to be used almost exclusively for the protection of the property of minors, the minor being made a ward of the State while their matter was dealt with.

More recently, cases demonstrate that parens patriae is not merely limited to situations where a child has been made a ward of the State.[57] At common law, the jurisdiction is considered to be potentially broad.[58] The court can make orders “in all matters relating to the custody, guardianship and welfare of all infants”.[59] In Re Jules, Justice Brereton described the court’s jurisdiction of parens patriae as necessary to “safeguard and oversee the welfare of those who are unable to attend to their own welfare and, in particular, children”’.

The Welfare Jurisdiction of the Family Court

While the Supreme Courts of the States and Territories of Australia have inherited the parens patriae common law jurisdiction, the Family Court of Australia derives a similar power to make orders relating to the welfare of children from Part VII of the Family Law Act 1975 (Cth) (”the Act”). The Act provides:

s67ZC(1) In addition to the jurisdiction that the Court has under this Part in relation to children, the Court also has jurisdiction to make orders relating to the welfare of children.

s67ZC(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

This power is often referred to as the ‘welfare jurisdiction’ and is accepted as a statutory equivalent to the parens patriae jurisdiction.[60]

Section 67ZC of the Act gives the Family Court wide and flexible powers to make orders relating to the welfare of children.

Primarily, the statutory jurisdiction relates to the exercise of “Parental Responsibility”, which is defined as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” in section 61B of the Act. This includes the responsibility of both day-to-day and long-term decisions.

In situations where those who have been entrusted with parental responsibility are not exercising it in the best interests of the child, the court can assume the role itself. It should be noted that the courts are generally reluctant to act as parens patriae unless absolutely necessary:

[…] judicial interference in the performance of an aspect of parental responsibility should occur only as a last resort or where the welfare of the child will clearly be advanced by the order being made.[61]

The Scope of the Welfare Jurisdiction: Medical Treatment of Minors

More recently, cases involving the welfare jurisdiction have largely involved questions concerning the medical treatment of children. While the courts will generally attempt to give the parents and the child autonomy to make decisions,[62] there are some medical procedures which cannot be consented to by a parent exercising ordinary parental responsibility. This occurs in cases where there is no clear legal authority for either the parent or the child to consent to a particularly serious treatment. As such, the medical treatment may be an unlawful intervention or even an assault. These cases call for the approval from the court as parens patriae.

In Secretary, Department of Health and Community Services v JWB and SMB,[63] Marion was a fourteen year old girl suffering from mental retardation, severe deafness and epilepsy. Her parents applied to the Family Court for an order authorising the performance of a hysterectomy and an ovariectomy, or in the alternative, an order allowing them to consent to the procedures themselves. They claimed it was in the best interests of the child to perform the procedures so as to prevent pregnancy and menstruation.

The court looked at and endorsed in the finding in Gillick v West Norfolk and Wisbech Area of Health Authority and Others[64] that the power of a child’s parents to make decisions for the child diminishes as the child gets older and develops the capacity, in intelligence and maturity, to make decisions for themselves: This is now often called in medico-legal circles being ‘Gillick competent’. Although it was accepted that Marion would never be Gillick competent, the court held that parents can never consent to non-therapeutic, irreversible medical procedures such as non-therapeutic sterilisation. It then used its welfare jurisdiction to authorise the performance of the hysterectomy.

However the welfare jurisdiction has also been used to override the wishes of a Gillick competent child if the court feels that it is in the best interests of that child. This has been done in cases where a child has refused medical treatment. While the law is still uncertain in Australia, there have been a number of UK cases where the court has authorised treatment against the child’s wishes.[65] This line of decisions has been controversial in child rights circles as it has been seen to undermine the development of the law (particularly since the landmark Gillick decision) in recognising that children are rights holders in the same way that adults are.

The limits of the Welfare Jurisdiction

While overriding the wishes of a Gillick competent child appears to indicate that there would be few restrictions on the exercise of parens patriae powers, the powers (at least as interpreted under the Family Law Act in Australia) are not broad enough to allow any order relating to the welfare of a child.[66]

In particular, the welfare jurisdiction may not give the Family Court the power to make orders in relation to third parties (except where expressly provided for in the Act) or to override an order in relation to another statute where it would be in the best interests of the child to do so.

In Minister for Immigration and Multicultural and Indigenous Affairs and B and Another,[67] the High Court found that while the Family Court’s welfare jurisdiction enables it to make orders that are binding on a parent, nothing in Part VII of the Act gives the court the power to make ‘parenting’ orders against the Commonwealth (the Department of Immigration, Multicultural and Indigenous Affairs) in relation to non citizen children held in immigration detention. It is worth considering whether implicit in this decision was an acknowledgment that since historically parens patriae is an inherent power of the Crown, the Crown is unable to bind itself.

In any event it seems clear that the parens patriae jurisdiction has provided (and will likely continue to provide) a valuable forum for exploring the rights of children and the responsibilities of those that are committed to their welfare.

Jaime Lee (Solicitor), Mallesons Stephen Jaques

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Anti-Terrorism Legislation and our Children

Since 11 September 2001, Australia has adopted significant measures to strengthen national security. These include what is known as “anti-terrorism legislation”. The reach and impact of many aspects of this legislation has set up considerable tension between effective law enforcement in the face of threats to national security and the protections offered by the criminal justice system for fundamental human rights. This article will examine the interaction of Australian anti-terror legislation with Australia’s obligations under the United Nations Convention on the Rights of the Child (“the Convention”), and argue that the delicate balance between children’s rights and national security is yet to be achieved.

The Australian Government began to enact a range of anti-terrorism laws in early 2002. These new laws sought to strengthen Australia’s protection of government information, aviation, telecommunication interception and extend Australia’s criminal laws to acts committed by Australians overseas. The Australian Government also introduced a range of new terrorism crimes and offences. In September 2005, a consensus on anti-terror laws was reached by the Council of Australian Governments (“COAG”) that the State and Territory Governments would adopt mirror legislation to the Federal Anti-Terrorism Bill 2005 (Act No 127, 2005) and Anti-Terrorism Bill (No 2) 2005 (Act No 144, 2005).

Preventative Detention and Control Orders

The Anti-Terrorism Act (No 2) 2005 (Cth) (the “Act”) introduced a range of new measures for preventative detention and control.[68]

The Act, which amended the Criminal Code Act 1995 (Cth), permits control orders to be issued over terrorist suspects for up to twelve months. A control order is an order of the court that restricts the movement and actions of individuals, including where they can go and who they can talk to.[69] Additionally, preventative detention orders were introduced for persons suspected of engaging in or planning for an imminent terrorist attack, where there is insufficient evidence for charges to be laid. If an order is made, a suspect can be detained for up to forty-eight hours under Federal legislation and up to fourteen days in each state. The Constitutional validity of these orders was upheld by the High Court in Thomas v Mowbray.[70]

Under these laws, both preventative detention and control orders can be made for children aged sixteen to eighteen years but cannot be sought for children under sixteen years. A control order can last up to twelve months for an adult, but only three months for a child.[71] However, there is no limitation on the issue of subsequent control orders, enabling the control to last, through the issuing of successive control orders, for an indefinite period.[72] In addition, under the Australian Security Intelligence Organisation Act 1979 (Cth), a warrant can be issued for questioning and detention of children aged sixteen to eighteen in relation to a terrorism offence.[73]

Impact on Children’s Rights

The ability to control and restrict the movement, actions and associations of a child has a clear potential to breach the right of the child to free association and peaceful assembly (Article 15 of the Convention) and the right of the child to freedom from unlawful or arbitrary interference with privacy, family, home or correspondence (Article 16 of the Convention).

The Convention does not contain a general derogation Article, unlike the International Covenant on Civil and Political Rights (“ICCPR”), which allows derogation from obligations in a time of state emergency, such as a terrorist attack. Certain Articles provide for limiting specific rights in accordance with the law and only if necessary for national security, public safety or public order. Generally, arguments for derogation of human rights under anti-terror laws, such as the right to liberty, have depended upon the general emergency derogation provision in the international covenants. However, this argument cannot apply to the rights of children under the Convention, unless the article specifically allows limiting rights in certain circumstances. The range of security measures implemented in legislation in Australia must therefore comply with our obligations under the Convention even though such measures were designed for use in emergency situations.

Rights to association and assembly contained in Article 15 of the Convention can be limited in circumstances which are necessary for the interests of national security, public safety or public order (Article 15(2) of the Convention). The terms of the Act permit a control order to be made if a senior Australian Federal Police (“AFP”) member considers that the order would substantially assist in preventing a terrorist attack or if the person subject to the order provided training to or received training from a terrorist organisation.[74] These circumstances in part encompass the national security or public safety exceptions in Article 15(2), although the terms of the Act are substantially wider than envisaged by the Article. Control orders may also be made to control or restrict a person from leaving Australia, using certain telecommunications or technology, from carrying out certain activities or to order a person to wear a tracking device or remain at a specified place during certain times.[75] Such orders could clearly infringe the rights contained in Article 16. Although evidence of balancing the Convention rights and national security is visible in the Act, by the inclusion of special rules for young people under section 104.28 of the Criminal Code Act 1995 (Cth), the ability to control or restrict a child to the degree the Act permits indicates that the Convention rights may not be afforded equality to security protections.

The ability to detain a child suspect without charge for up to 14 days under State legislation,[76] or 48 hours under Federal Legislation, by a preventative detention order would appear to violate Article 37 of the Convention. Article 37(b) provides that children must be detained only as a measure of last resort. Preventative detention enables children to be detained where no criminal culpability has been proven by a court. However, proponents of the legislation argue that as the circumstances demand the child be suspected of engaging in or planning for an imminent terrorist attack,[77] a preventative detention order would be made in accordance with last resort principles. Further, additional limited protections were included for children subject to a preventative detention order; including contact with a parent or guardian in which they are allowed to disclose that they are being held in preventative detention and a provision that they must be detained separately from adults. Despite these protections, these types of orders have been questioned for both motive and relevance. If an attack is imminent, the arrest powers of the police to charge for conspiracy or attempt would surely be sufficient for public protection.[78] Further, while these orders are in place, a detained person cannot be questioned by ASIO or the police, casting doubt on the purposes and intended use of these orders.[79] Again it would appear that in balancing of liberty and security, fundamental freedoms have not emerged victorious.

A Delicate Balance?

In adopting mirror legislation, the Australian Capital Territory (“ACT”) introduced several changes to comply with the Human Rights Act 2004 (ACT). Under the ACT legislation, preventative detention orders cannot be made for persons under eighteen years of age. At the Federal level, proposed legislative reforms to national security legislation and a Discussion Paper were released by Attorney-General Robert McClelland in 2009. However, these make no reference to increasing the age at which preventative detention or control orders can be issued.

It is clear that parliament has taken human rights into account in adopting safeguards for children, in an attempt to balance liberty, security and the special protections required for children. However, the lack of a general emergency derogation provision in the Convention and the ability to detain children aged sixteen to eighteen under preventative detention and control orders indicates that the precarious balance of the Convention rights and protections has probably been subverted under current terrorism legislation. It is important to enhance the protection of the Convention rights under Australian anti-terrorism laws to promote the liberties that terrorism attacks. By ensuring Australia’s international obligations to human rights are balanced equally with police powers, Australia can not only provide safeguards against terrorism but can also provide safeguards for the rights of its own children.

Amelia Avery-Williams (Summer Clerk), Mallesons Stephen Jaques

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Special Commission of Inquiry into Child Protection in New South Wales

In 2007, the New South Wales (“NSW”) Government requested that the Honourable James Wood AO QC conduct a Special Commission of Inquiry into Child Protection Services in NSW (“Special Commission”). This request was prompted by the death of two children, both of whom had a long history of involvement with the Department of Community Services (“the Department”). A two year old boy’s body was found stuffed in a suitcase in a western Sydney park and a seven year old girl was found in her Hawks Nest home, starved to death. The death of these children highlighted the ineffectiveness of the current system and the need for a new approach.

In 2002 the Department had overhauled the child protection system, implementing a reform program that had aimed to

employ an additional 910 caseworkers and support staff;
establish an early intervention service;
expand and improve out of home care services;
improve professional development opportunities for caseworkers and their managers; and
improve systems including those for finance, human resources, recruitment and occupational health and safety.

This reform program attracted a funding boost, increasing the annual budget in 2007/2008 to more than $1.2 billion.[80]

Although by 2008, many of the 2002 reforms were underway or implemented, the benefits of these reforms were not yet fully evident. Nevertheless, the Special Commission considered what changes within the child protection system were needed in order to cope with future levels of demand. Between 2002 and 2007, there had been a seventy-nine percent increase in child protection reports and a thirty-seven percent increase in the number of children in out of home care.[81] The arrangements for early intervention, responding to child abuse and neglect, interagency cooperation, out of home care and the role of the courts and of the oversight agencies were also examined as part of this inquiry.

Commissioner Wood handed down the Special Commission of Inquiry Report into Child Protection Services in NSW in November 2008. The Inquiry had included a consultation generating over 600 submissions and twenty-four public forums held around the state of NSW. The report indicated that at a time when the level of reporting of child abuse and child neglect is increasing, the challenge facing governments is to develop a sufficiently resourced system which provides appropriate support, flexible prevention and early intervention programs.[82] The Report stressed that child protection is a collective responsibility for the whole of government and the broader community.[83]

The inquiry found that the number of reports being made to the Department was increasing and therefore the Department was forced to close many cases due to insufficient funding. In its defence the Department maintained that a substantial volume of the reports did not require the use of the Department’s statutory powers. However this still added to the strain on the Department’s limited resources in circumstances where the cases would have been better dealt with by other organisations. The inquiry also found that there were insufficient prevention and early intervention services and that an increasing number of children and young people were requiring out of home care for longer periods of time.[84]

The Report’s 111 recommendations were ranked in priority according to whether they should be implemented immediately, in the short term or in the long term. The most pressing recommendations (requiring “immediate” attention) included relocation of the majority of the Complaints Unit functions to the Helpline, the requirement that all Casework Managers possess a relevant tertiary qualification as well as experience in child protection work and the introduction of programs to ensure greater cooperation between agencies and the Children’s Court. It was also recommended that those making reports should be informed of the progress of their report. This was designed to avoid duplication of reporting for the same incident and to encourage community members to become involved in addressing the problems identified. Further, increased funding was required so that alternative dispute resolution processes could be used in proceedings involving the care of children.

On 3 March 2009, the NSW Premier and the Minister for Community Services announced the Government’s response to the Special Commission, accepting 106 out of 111 of the Report’s recommendations in full or in principle. The Government’s response (Keep Them Safe: A Shared Approach to Child Wellbeing) set out a five year action plan accompanied by a $750 million investment, 40 percent of which is to be directed to activities of non-government organisations. This recognises the superior ability of many non-government organisations to provide specialised support in the area of child protection. It is anticipated that these non-government organisations will use the funding to provide more places for children in out of home care, to establish a network of referral services to provide links for children and families needing support and to fund assistance programs for Aboriginal families. It is also envisaged that the reforms will facilitate the exchange of information between non-government organisations in order to continue the improvement of child protection services.

The Government’s response also included legislative reforms. Under the reforms, mandatory reporters will only need to report where children or young people are exposed to a “risk of significant harm”. This is a higher threshold than the previous “risk of harm” test.[85] Child Wellbeing Units are to be established in the Government’s major mandatory reporting agencies, including NSW Health and NSW Police. These Units will help mandatory reporters decide whether cases satisfy the new thresholds and if not, what alternative local responses and assistance can be given.

The Wood Inquiry only examined child protection services in NSW. However the challenges faced in NSW faces are not unique. Since the release of the report from the NSW inquiry, the Northern Territory announced in November 2009 that it would conduct another independent inquiry into child abuse less than three years after the previous report.[86] In the last decade every state and territory has conducted at least one significant review into its child protection services. South Australia and Queensland have conducted inquiries into children in state care and the abuse of children in foster care. The Gordon Inquiry conducted in Western Australia in 2002 examined the response of government agencies to complaints of family violence and child abuse.

A state by state approach falls short of the national reform that is required to ensure consistent and measurable improvements to child protection in Australia. We also note the current Australian Law Reform Commission’s family violence inquiry with terms of reference that include the interaction between state and federal child protection laws. The Council of Australian Governments has also developed the National Framework for Protecting Australia’s Children 2009-2020. This Framework was developed in recognition of the need for co-ordination between Australian government programs and policies and aims to deliver a more integrated response to the problem.[87] We look forward to reforms that ensure that children and young people grow up in environments free from harm.

Kirsten Lau (Summer Clerk), Elizabeth McGill (Solicitor) and Erin Piatek (Solicitor), Mallesons Stephen Jaques

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Children in Armed Conflict

Prohibitions and Prosecutions in International Humanitarian Law

Human Rights Watch estimates that there are approximately 200,000 to 300,000 children currently involved in armed conflicts as soldiers for both rebel groups and government forces around the world. Many children are forcibly recruited, and even those who ‘volunteer’ often do not see viable alternatives. The cultural, political and social settings can present life as a soldier as an opportunity for recognition. Assimilation back into the community is also difficult. International law has recognised the problem and its prevalence with treaties restricting and prohibiting the recruitment and use of children in armed conflict. This article will consider the prohibitions against the recruitment and use of child soldiers in war in international conventions. It will then consider the potential to prosecute violations as a war crime before the International Criminal Court (“ICC”).

The issue of child soldiers was first addressed internationally by the two Protocols Additional to the 1949 Geneva Conventions (1977), which dealt with the protection of victims of both international and non-international conflicts. These require ‘all feasible measures’ to be taken to prevent children under fifteen years from taking part in international hostilities and expressly prohibit the recruitment and participation of children under the age of fifteen in non-international conflict. These prohibitions were echoed by the Convention on the Rights of the Child (1989) (the “Convention”), which has been ratified by every member of the United Nations other than Somalia and the United States.

The Optional Protocol to the Convention on the Rights of the Child (2000) (the “Protocol”), which has to date been ratified by 126 countries, raises the prohibited age in non-State forces to eighteen, and requires States to take all feasible measures to prevent the recruitment and use of those under eighteen in such forces. The Protocol also requires that all feasible measures be taken to stop children under eighteen being directly involved in hostilities with State armed forces, sets eighteen as the minimum age for national conscription, and sets requirements for recruitment on a voluntary basis from age sixteen onwards. It is argued that the protocol does not go far enough, as ‘feasible measures’ may not prevent those under eighteen joining national armed forces and States need only avoid ‘direct’ participation from children to comply.

The most stringent regional prohibition on the recruitment and use of child soldiers is featured in the African Charter on the Rights and Welfare of the Child (1990), which came into effect in 1999. It requires all necessary measures to be taken to ensure that no person under 18 takes part in hostilities, with a particular emphasis on recruitment. Despite these measures, the use of child soldiers is common in signatory States such as the Democratic Republic of Congo, Uganda and Sierra Leone. Further steps have been taken to assist in dealing with this problem. In addition to prohibitions directed at the States, the recruitment and use of children in armed conflict have now been criminalised for individuals in many States (though State involvement in prosecution remains important).

The widespread acceptance of a prohibition on the recruitment and use of child soldiers demonstrated by the Convention led to its inclusion as a war crime in the Rome Statute of the International Criminal Court (1998) (“the Rome Statute”). The International Criminal Court can prosecute the conscription or enlistment of children under the age of fifteen years in armed conflicts as a war crime. The ICC can initiate a prosecution itself where state parties are unable or unwilling to prosecute the crime themselves. Whilst the Rome Statute has not been universally ratified (the United States is a notable absentee), even countries who are not parties to the Rome Statute can opt in to its jurisdiction on a case-by-case basis.

The Court’s jurisdiction is already having a visible impact, as demonstrated by the case of Thomas Lubanga Dyilo of the Democratic Republic of Congo (“DRC”).[88] Lubanga was the first man arrested and detained under the Rome Statute for enlisting child soldiers. Additionally, in the Special Court for Sierra Leone, four individuals have been convicted of the war crime of recruiting and using child soldiers and there are two other warlords from the DRC currently in ICC custody.

The Lubanga case resulted from an ICC investigation at the invitation of the Congolese authorities in March 2004. An arrest warrant was issued for Lubanga’s on 10 February 2006. The warrant alleges that as President of the Union of Congolese Patriots (“UPC”) and Commander-in-Chief of the Force Patriotiques pour la Liberation du Congo (“FPLC”), Lubanga managed and directed the enlistment and conscription of children under the age of fifteen into a military force and then used those children to execute combat operations. This conscription, enlistment and active participation in hostilities of children under fifteen constitutes a war crime under the Rome Statute and Lubanga faces the prospect of life imprisonment if convicted. He was arrested on 17 March 2006, but the trial did not commence until 26 January 2009. As at January 2010, the Prosecution has concluded its case and the Defence will soon begin to present its case.

It is hoped that trials such as that of Lubanga will act as a deterrent to those recruiting and using children in armed conflict. This relies on news of the charges, prosecutions and punishments being properly communicated to the affected region. Human Rights Watch has indicated that militia leaders in the Congo are aware that the charges have been laid and have stopped openly admitting to the inclusion of children in their forces. However, this case also demonstrates the difficulties associated with such trials, as apparently many of Lubanga’s followers have interpreted the delay caused by the stay of proceedings between 2006 and 2009 as an indication of his innocence. If proceedings in The Hague do result in a conviction, it will be a landmark result for the ICC. The next step will be to ensure that other perpetrators are made aware of their own vulnerability to prosecution.

Matt Gould (Summer Clerk), Mallesons Stephen Jaques

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Adding Teeth to CROC

An Individual Complaints Process for the Convention on the Rights of the Child

The Convention on the Rights of the Child (“the Convention”) is the most ratified human rights treaty in history. The two Optional Protocols – on children in armed conflict and on the sale of children, child prostitution and child pornography – have also attracted significant state support, with 131 and 135 ratifications respectively as at 14 February 2010.[89] Many hail this as a revolutionary step forward for human rights, and children’s rights in particular.

This article examines the narrow but important question of whether the enforcement mechanisms in the Convention are adequate and whether a new individual complaints process is desirable. According to UNICEF, in the decade after the arrival of the Convention, more progress was made “in realizing and protecting children’s rights … than in any other comparable period in human history”.[90] Although there is much truth in this view, it is equally true that a large number of reservations have been made to the Convention and that millions of children around the globe are still denied their basic human rights. The enforcement mechanisms in the Convention are weak in comparison to other UN human rights conventions. This article acknowledges that there are drawbacks to an individual complaints process. However, these are outweighed by the additional enforcement and the awareness of violations of children’s rights that an individual complaints process could bring.

Enforcement under the Convention

By ratifying the Convention, a state is bound under international law to “respect and ensure the rights set forth in the present Convention”.[91] Whether the Convention is then automatically incorporated into domestic law depends on whether the state is ‘monist’ or ‘dualist’. For monist states, such as France, a ratified treaty immediately becomes part of domestic law and is fully enforceable in domestic courts. For dualist states, such as those belonging to the common law world, the Convention does not become law unless and until the legislature specifically enacts the provisions of the treaty. Enforcement issues are thus particularly significant in dualist states, such as Australia, that have not specifically enacted all of the provisions of the Convention.

There are five general enforcement mechanisms found in human rights treaties: education, fact-finding, conciliation, complaint procedures and coercion.[92] The Convention is only armed with weak versions of the first two mechanisms.

For example Article 45(b) contains an education provision under which the Committee on the Rights of the Child (“Committee”) may transmit observations and suggestions upon a states request for technical advice or assistance to UNICEF and other organisations.

The Committee engages in fact finding through by states to submit reports every five years on the progress they have made on guaranteeing enjoyment of Convention rights.[93] The Committee then makes ‘concluding observations’ on those reports.[94] This public reporting procedure is the main enforcement process under the Convention. Unlike other human rights conventions, the Convention on the Rights of the Child does not contain an individual petition process or a state-to-state complaints procedure.[95]

The reporting system is only effective to the extent that it provides a basis for international and domestic criticism of governments, based on reported facts and the Committee’s concluding observations. It seems that most states take their reporting requirements seriously, and the independent, eighteen-person Committee has rarely hesitated to criticise state failures.[96] However, the Committee cannot instigate inquiries into overly optimistic state reports. It may, however, request advice from non-governmental organisations such as UNICEF when seeking to corroborate state claims,[97] and it regularly holds ‘days of discussion’ and consults experts on general themes, such as children in armed conflict.

Hence, current enforcement powers under the Convention are weak, as they consist primarily of self-assessment by states, the very entities whose accountability is being monitored.

An Individual Complaints Process for the Convention?

Under the Optional Protocol to the International Covenant on Civil and Political Rights (“ICCPR”), individuals (otherwise referred to as ‘authors’) may issue a communication to the Human Rights Committee asking it to come to a non-binding view as to whether the individual’s human rights under the ICCPR have been infringed. An example of such a communication was A v Australia,[98] where a Cambodian refugee claimed that his continuing four-year immigration detention amounted to arbitrary detention under Article 9(1) of the ICCPR, and that his right to judicial review was denied by a privative clause in the Migration Act 1958 (Cth) contrary to Article 9(4) of the ICCPR. Although the Human Rights Committee found for the author, its view was not implemented by Australia.[99] On 29 August 2000, the Howard Government expressed its dissatisfaction with the UN system of individual communications.[100] It also stated it would refuse any ‘unwarranted requests’ from the UN to delay deportation of asylum seekers, thereby effectively frustrating communications by asylum seekers who fear torture after deportation.[101]

The above illustration indicates both the advantages and drawbacks of a human rights individual complaints processes. On the one hand, individuals can apply international pressure to a state to encourage it to comply with human rights standards where all domestic remedies have been exhausted or are ineffective. On the other hand, even those states with a relatively good human rights record like Australia may react unpredictably to this international pressure, which could have a destabilising effect on the international human rights system.

Some commentators argue that individual communications raise the problem of determining whether particular obligations in the Convention were to be immediately implemented or require progressive implementation.[102] This may be determined by whether an obligation is qualified by the availability of resources. However, it is submitted that this is an issue of interpretation and that individual communications would still increase the efficacy of the Convention.

Conclusion

Children are among the most vulnerable and dependent people in society. The Convention itself specifically recognises that there are already significant barriers to the effective enforcement of the human rights of children. An individual complaints process, while not a perfect solution, would be a step in the right direction towards bolstering international respect for children’s rights.

Sylvester Urban (Summer Clerk), Mallesons Stephen Jaques

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Case Notes

Australian Crime Commission

Australian Crime Commission v NTD8 [2009] FCAFC 86

In this case the full Federal Court on appeal held that the ‘best interests of the child’ is a relevant consideration when deciding whether it is reasonable to issue a notice for the production of a document or thing under s 29(1)(b) of the Australian Crime Commission Act (the “ACC Act”). However, the Court refused to find that best interest of the child must be the primary consideration. In the circumstances of the case, the Court found that the Australian Crime Commission Examiner (“Examiner”) did consider the best interests of the child before issuing a notice to produce medical records of eight young Aboriginal females.

Facts

NTD8 is an Aboriginal community-controlled health services provider, primarily in the area of counselling and advice work in sexual and reproductive health for young women and girls. Importantly, they are the sole providers of these services in the region. The Examiner issued a Notice to NTD8 under s 29(1)(b) of the ACC Act for the production of personal and health records of eight Aboriginal females which were under sixteen years of age. Prior to issuing the Notice, the Examiner is required, under s 29(1A) of the ACC Act, to be satisfied that it was “reasonable in all the circumstances to do so”. The purpose of producing the records was to assist the Australian Crime Commission in its investigation of Indigenous domestic violence and child abuse. These investigations were conducted in response to the Intergovernmental Summit on Violence and Child Abuse in Indigenous Communities and the Little Children are Sacred Report, commissioned by the Northern Territory government.

The Notice also contained a notation prohibiting the disclosure of information about the Notice or any other matters connected with it, except for the purpose of challenging its validity in Court. This meant that NTD8 could not explain to the relevant Aboriginal girls the reasons for the breach of confidentiality. It was feared that this breach of trust would discourage the girls and others from using NTD8’s services. This is significant as NTD8 was the sole provider of such health services to a wide geographical region. The Examiner argued that the notation would in fact operate to protect the confidentiality of NTD8’s clients.

There were two main issues on appeal. First, whether the best interests of the child is a relevant primary consideration when deciding whether to issue a Notice. If so, the second issue was whether in the circumstances of this case, the Examiner did consider the best interests of the child.

Decision

Having regard to the scope and purpose of the relevant provisions of the ACC Act, the Court found that the best interests of the child was a relevant consideration which the Examiner was obliged to consider before issuing a Notice under s 29 of ACC Act. It was held that the power conferred by s 29 is wide with few express constraints. Although s 29 did not impose any express obligations on the Examiner to consider the best interests of the child, this obligation may be implied through statutory construction.

However, the Court refused to find that the best interests of the child must be a primary consideration of the Examiner. It was held that to do so in the absence of express terms would stretch the boundaries of statutory interpretation. Therefore, it is the Examiner’s responsibility to attribute appropriate weight to various and competing considerations.

The Court did not rely on the adoption of the Convention on the Rights of the Child (the “Convention”) to conclude that the best interests of the child is a relevant consideration, because the Convention does not form part of Australia’s domestic law.

The Court found that in the circumstances of this case, the Examiner did not fail to consider the best interests of the child.

The Court recognised that the Examiner faced two competing interests. From one perspective, it is in the children’s best interest that information is gathered for the prevention of domestic violence and child abuse. On the other hand, the process of doing so may discourage Aboriginal women from using NTD8’s services in the future. The Court relied on the fact that Legal Submissions prepared by an ACC officer made specific reference to NTD8’s concerns that disclosure may discourage the affected and other Aboriginal women from using their medical services. These Legal Submissions were then adopted by the Examiner in his reasons. Based on this the Court found that the Examiner did take into consideration the best interests of the child.

The decision is available at http://www.austlii.edu.au/au/cases/cth/FCAFC/2009/86.html.

Kirsten Lau (Summer Clerk) and Lisa Qin (Solicitor), Mallesons Stephen Jaques

Statutory Guardianship of Children – Power without Litigable Responsibility?

Sadiqi v Commonwealth of Australia (No 2) [2009] FCA 1117

This case followed the plaintiff’s successful review of his refugee status and the granting of a temporary protection visa. The Federal Court considered whether, as a consequence of his lengthy detention, the plaintiff could seek compensation from the Australian Government pursuant to s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth). McKerracher J ultimately found that a breach of the statutory guardianship responsibilities by the Minister for Immigration and Citizenship (the “Minister”) does not give rise to an independent cause of action.

Facts

According to s 6 of the Immigration Act, the Minister is the legal guardian of every non-citizen person under the age of eighteen years that enters Australia. This guardianship is to the exclusion of the child’s natural parents and includes all the same powers and responsibilities as would be held by a natural guardian of the child.

In this case, the plaintiff was a citizen of Afghanistan. He was intercepted by Australian officers while travelling to Australia in October 2001 and was detained at Christmas Island. At the time of interception by Australian officers, the plaintiff was sixteen years old. He was subsequently transferred to Nauru in December 2001, where he was granted certain visas by Nauru while pursuing a claim for protection as a refugee. The plaintiff’s application to be recognised as a refugee was denied.

The plaintiff travelled to Perth in November 2002 in order to give evidence at a coronial inquiry and was held in immigration detention until February 2004. During this time, he sought review in the Refugee Review Tribunal under s 198C of the Migration Act 1958 (Cth). This section allows the review of the refugee status of an individual who has stayed in Australia for a continuous six month period.

The Tribunal found that he was a refugee and he was granted a temporary protection visa on 25 February 2004. Subsequently, the plaintiff brought proceedings in the Federal Court seeking various forms of relief, including compensation.

Decision

Although much of McKerracher J’s judgment was concerned with the precise definition of the Plaintiff’s status under the Migration Act, the Minister’s obligations as the Plaintiff’s statutory guardian were also considered. It was held by the Court that the power and responsibility vested in the Minister as guardian were analogous to those held by a natural parent.

Nevertheless, a breach of those responsibilities did not give rise to a freestanding cause of action. The Court referred to the recent decision of Trevorrow v State of South Australia (No 5), where it was held by Gray J that absent the creation of any private cause of action by the relevant statute, no freestanding cause of action could exist.[103] The same conclusion was reached by the Court in the current case. (It should be noted that Trevorrow is currently under appeal).

Despite this outcome, the statutory provisions designating the Minister as guardian remained relevant to any other causes of action the Plaintiff might have, particularly with respect to duty of care and statutory misfeasance. These causes of action were ultimately proven by Trevorrow. However, unlike in Trevorrow, these particular causes of action were not pursued by the Plaintiff in the present case and no damages were ultimately awarded. It is likely that the divergent approaches were a result of the unique facts of Trevorrow, in which public officials were found by the Court to have acted in a way that they knew to be illegal. No such situation was found or alleged in the current case.

The decision is available at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2009/1117.html.

Lloyd Tomlin (Summer Clerk), Mallesons Stephen Jaques

Appointment of an Independent Children’s Lawyer and the Requirement of ‘Exceptional’ Circumstances

State Central Authority v Quang [2009] FamCA 1038

State Central Authority v Quang[104] (“Quang”) considers when exceptional circumstances exist so as to justify the appointment of an independent children’s lawyer under s 68L(3) Family Law Act 1975 (Cth) (“the Act”). In doing so, it also illustrates the manner in which the Convention on the Civil Aspects of International Child Abduction (entry into force 1 December 1983) (“the Convention”) secures a parent’s right of access to children living in other jurisdictions.

Background: Child Abduction Convention

Australia is a party to the Convention. The object of the Convention[105] is to provide a mechanism for State Authorities to bring proceedings in various Convention countries to secure the return of children wrongfully retained in another Convention country and to ensure that parental rights of access are respected. As outlined in articles 7 and 21, the achievement of these objects requires the co-operation of Convention countries to promote the peaceful enjoyment of access rights.

The Convention is given effect in Australia by the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). Rule 24 of the Regulations requires the Commonwealth Central Authority to take action to secure the rights of access to a child in Australia if requested by a State Central Authority. Rule 25 of the Regulations enables the Commonwealth Central Authority to apply to the court for orders to protect access rights.

Facts

In Quang the father of children, referred to as L and C, lived in Spain where he had been in a relationship with the children’s mother before she returned to Australia. The parents had signed a regulatory agreement in Spain which gave the father the right to sixty consecutive days with the children in Spain each year. Spain is also a Convention country. The State Authority of Spain, on application by the father, requested the Commonwealth Central Authority under Rule 24 of the Regulations to seek orders pursuant to Rule 25 of the Regulations, compelling the mother to comply with the regulatory agreement.

At the interlocutory stage, Bennett J was asked to consider whether an independent children’s lawyer was required to represent the interests of L and C at the hearing of the father’s application to enforce the regulatory agreement. In so doing, Bennett J described the exceptional circumstances that must exist in order for the court to appoint an independent children’s lawyer in Convention proceedings under section 68L(3) of the Act.

Appointment of an Independent Children’s Lawyer

Section 68L(3) of the Act enables the court to appoint an independent children’s lawyer in proceedings under the Convention where there are exceptional circumstances. When appointed, the independent children’s lawyer is not a legal representative of the children but rather,[106] is entrusted to act in what they believe to be the best interests of the child.

In Quang, Bennett J concluded that there were three exceptional circumstances so as to justify the appointment of an independent children’s lawyer. Firstly, there were evidentiary issues arising from the fact that the Commonwealth Central Authority had to rely upon information from the Central Authority in Spain who was in turn receiving information from the father. Secondly, there was insufficient evidence to allow Bennett J to appropriately consider the time that L and C should spend with each of their parents given that the regulatory agreement between their parents had never been implemented. Thirdly, there were potential legal issues arising from the fact that the regulatory agreement conferred responsibilities and obligations on the parties in respect of an unborn child.

Rights of Child Convention

It appears that Bennett J’s decision to appoint an independent children’s lawyer was additionally influenced by Her Honour’s view that the best interests of the child should be considered in proceedings under the Convention. Bennett J referred to Her Honour’s earlier decision in State Central Authority v Peddar[107] where it was said that whilst the Convention provides the framework enabling State Central Authorities to initiate proceedings in other Convention Countries, it is the United Nations Convention on the Rights of the Child (which holds the best interests of the child as paramount) that must guide the resolution of the proceedings.

Conclusion

The decision of Bennett J in Quang provides guidance as to when an independent children’s lawyer will be appointed in proceedings under the Convention by elaborating upon what may amount to ‘exceptional’ circumstances under the Act. In doing so Bennett J expressed the view, that the best interests of the child should be considered in Convention proceedings.

The decision is available at http://www.austlii.edu.au/au/cases/cth/FamCA/2009/1038.html.

Lucienne Maxwell (Summer clerk) and Simon Seguna (Solicitor), Mallesons Stephen Jaques

BVB v Victims of Crime Assistance Tribunal [2010] VSC 57 (5 March 2010)

This decision was an appeal from the Victorian Victims of Crime Assistance Tribunal concerning financial assistance for a victim of school bullying under the Victims of Crime Assistance Act 1996 (Vic) (the “Act”). For the first time, the court recognised that bullying, even by someone under the age of criminal responsibility (ten years of age in Australia), could be considered a criminal act entitling the victim to financial assistance.

Facts

Section 1 of the Act states that a primary victim of a criminal act may have recourse to financial assistance where compensation cannot be obtained from the offender or from any other source.

In this case, the appellant, a young female, sought financial assistance for harm suffered as a result of bullying incidents at a public school. She had attended a Victorian primary school and at the age of eight was ‘bullied’ by other students for nearly five years. The long history of incidents involved students threatening to have her killed, menacing her with a broken bottle, physical assault and verbal abuse. Following an incident where the appellant, then in Year six, was pushed off the monkey bars and seriously injured her back, she was removed from the school and sent to a private school which caused substantial financial strain on her parents. The psychologist before the Victorian Victims of Crime Assistance Tribunal (“Tribunal”) gave evidence that the appellant, now fifteen, continues to suffer from a “generalised anxiety disorder”.

The appellant brought the claim before the Tribunal “on the basis of bullying but on the grounds of threats to kill and assault” (emphasis added). The majority of the incidents occurred when both the perpetrators and the appellant were under ten years of age and thus below the age of criminal responsibility.[108] The issue for the court was whether, despite the age threshold, the incidents could be considered as ‘criminal acts’.

Decision

Section 3(1)(a) of the Act defines a ‘criminal act’ as conduct that would constitute a relevant offence but for the offender being excused of criminal responsibility by reason of a legal incapacity or other legal protection.

At first instance, the Tribunal was unsatisfied that the bullying incidents amounted to actual criminal behaviour because they lacked the requisite ‘criminal intent’. The Tribunal drew a distinction between what it considered to be ‘rough and tumble’ in the school yard including ‘hollow’ threats to kill by ten year old children and ‘actual criminal acts’, as defined in s 3 of the Act.

However, in contrast to the Tribunal, Cavanough J of the Supreme Court of Victoria determined that, for the purposes of establishing whether the appellant was a victim of a criminal act, ‘legal principles and protections’ relating specifically to the age of the offender are not relevant. To that end, his honour determined that ‘basic’ or ‘general’ intent to commit a criminal act is sufficient. The evidence clearly indicated that there was hostility and an intent to harm the appellant. It was irrelevant whether the perpetrators had the means or intent to actually carry out the threats, given that they had undoubtedly put the appellant in fear of her life.

The court did not express a view as to whether accidental or involuntary conduct could also give rise to a claim for compensation under the Act. The matter was remitted to the Victims of Crime Assistance Tribunal to be reheard.

Implications

The decision has been heralded as a landmark ruling, recognising the seriousness of bullying as a crime deserving of compensation and has opened an avenue for relief for young victims of bullying. However, a prominent psychologist and founding member of the National Centre Against Bullying, Dr Michael Carr-Gregg has suggested that the decision may move the focus from ensuring that schools remain responsible for providing safe environments to sending a message that “if you can’t get justice at school…you can get external compensation”.[109]

The case also highlights the lack of effective response by schools and the Education Department to bullying, particularly by allowing such behaviour to continue over a long period of time. Only days after this decision was delivered, a teenage girl, who had been subjected to bullying for two years without any meaningful response from the school, received $290,000 compensation from the Education Department of Victoria in an out-of-court settlement. While these cases may be indicative of a more lenient approach to bullying compensation, they also, more importantly, underscore the need for better frameworks in place to recognise and address bullying in schools instead of relying on compensation to solve the issue.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2010/57.html.

Bella Khabbaz (Summer clerk), Mallesons Stephen Jaques

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If I Were Attorney-General…

A Rights Mandate for Children and Young People

If I were Attorney-General I would recognize that the way in which we treat children and young people today will shape the Australia of the future. I would acknowledge that there is an undeniable link between fair recognition of a person’s rights and their inclusion and participation in society. Far from recognizing and protecting their human rights, children and young people are over policed and under supported in the current Australian context.

Children and young people are overrepresented in homelessness figures and face a disproportionate level of unemployment and disadvantage. They are subject to heavy-handed laws; move-on notices and curfews when they try to use public spaces; punitive probation requirements when they try to get their drivers licenses; increasingly serious sanctions for not attending school, in some cases even withholding of benefits from their families. Each year governments across the country ‘up the ante’ in law and order campaigns that disproportionately affect young people, while children and young people have little or no way of influencing the political process.

If I were Attorney-General I would start from a rights-based framework, one that fully recognizes the human rights of children and young people. I would keep in mind that civil and political rights, such as freedom of association and assembly and the right to participation, are rights that children, as humans, hold. They also hold economic, social and cultural rights such as the right to adequate housing and an adequate standard of living. Children have some further rights that recognize their vulnerability, but these rights to protection augment rather than diminish their fundamental human rights.

Drawing on the recommendations that were made by the Seen and Heard report,[110] I would start by calling a National Summit on Children and Young People and from the summit I would convene an implementation taskforce. I would ensure that there was supported and effective participation of children and young people within the Summit. This would include a fully resourced preliminary consultation process which engaged children and young people of various ages and backgrounds and led into the development of the taskforce and its priorities. Attention would also be given to the taskforce’s reporting and accountability to children and young people.

I would introduce a bill to lower the voting age, making it possible (though not compulsory) for young people to enroll to vote once they reach the age of fourteen years. I believe that this would produce a greater political awareness of the issues faced by young people across Australia and send a clear message that we are serious about listening to what children and young people have to say.

I would build on the commitment made by the Council of Australian Governments (“COAG”) to a National Framework for Child Protection to create a National Framework on Youth Justice as part of my portfolio responsibilities. This would provide national leadership and move us away from ‘tough on crime’ stances that always translate as ‘toughest on those that can’t vote’.

I would place youth homelessness at the top of the agenda for COAG. The National Youth Commission found that youth homelessness has doubled in the last two decades.[111] As Attorney General I would make sure that the $1 billion this report calls for to tackle the problem is made available and I would follow-up by making it an ongoing agenda item for COAG and a priority issue for the newly established taskforce.

I would also build on the work done in establishing the Australian Youth Forum, and ensure that it moves beyond the ‘roundtables’ model to be a truly participatory consultative body for children and young people. Exactly what it should look like would only become clear after a wide consultation of young people lead by the taskforce. I would also appoint a National Children and Young Peoples Commissioner, independent of both the Government and the Australian Human Rights Commission and reporting directly to Parliament. The Commissioner would work closely with the taskforce to ensure that children’s and young people’s voices are heard by Government. The Commissioner’s office would be overseen by a management committee of children and young people.

I would also call for a broad National Policy for Children that has the Convention on the Rights of the Child as its foundation.

Finally, I would provide funding for specialist children’s lawyers based in the community sector. Currently in this sector there is one children’s lawyer for, approximately, every one million young people under 25. Community lawyers can assist children and young people to navigate the system, thus reducing conflict, homelessness, incarceration and other consequences of legal problems. But more importantly, advocacy can assist young people in claiming and protecting their own human rights; a process which is undervalued and overdue in the Australian context.

Anna Copeland is a senior lecturer at Murdoch University, Western Australia, and Assistant Director of the Murdoch University School of Law’s clinical legal education program at SCALES. She is a Barrister and Solicitor of the Supreme Court of Western Australia.

Acknowledgments

Alex Feldman, editor of this Special Bulletin, (Solicitor, Mallesons Stephen Jaques)

I would like to express my thanks to all those solicitors and clerks at Mallesons Stephen Jaques that helped research, coordinate and prepare articles for this Special Bulletin: Amelia Avery-Williams, Jennifer Cheung, Melissa Dejong, Nicholas Dowsley, Emma German, Nicola Gillies, Matt Gould, Beth Hackney, Bella Khabbaz, Jaime Lee, Kirsten Lau, Philippa Macaskill, Lucienne Maxwell, Elizabeth McGill, Alissa McKeagg, Sarah Penman, Lisa Qin, Erin Piatek, Stephanie Puris, Ziggy Napier, Jane Richards, Simon Seguna, Tami Sokol, Lloyd Tomlin, Sylvester Urban, Natalie Zerial, and Suiyi Zhang.

Special thanks to Anna Spies and Amelia Avery-Williams of Mallesons Stephen Jaques for their tireless efforts in assisting with every aspect of this publication.

I would like to also thank James McDougall, Director of the National Children’s and Youth Law Centre for providing us with his invaluable experience and for editing these articles. Thanks also to Anna Copeland for her “If I Were Attorney General…” opinion piece.

[1] Convention on the Rights of the Child, opened for signature 20 November 1989, 1557 UNTS 3, art 4 (entered into force 2 September 1990).

[2] (1995) 183 CLR 273.

[3] For example in Queensland, children aged 17 can be detained in adult prisons. Additionally, though there is some consistency among states and territories as to age of consent for sexual activity, the defence of similar age is only available in some states. and territories.

[4] Human Rights Act 2004 (ACT) s 11; Charter of Human Rights and Responsibilities Act 2006 (VIC) s 17.

[5] Human Rights Act 2004 (ACT) s 11.

[6] See for example the concerns expressed in Youthlaw, Submission to the Victorian Attorney General’s Independent review of the Equal Opportunity Act (1995) Victoria, (2008). See also the assessment of the ACT Human Rights Act Research Project on the impact of the Human Rights Act 2004, at 23 March 2010.

[7] Children and Young People Act 2008 (ACT) s 8; Children and Young People (Care and Protection) Act 1998 (NSW) s 9; Children, Youth and Families Act 2005 (VIC) s 10; Care and Protection of Children Act 2007 (NT) s 10; Child Protection Act 1999 (QLD) s 5; Children, Young Persons and their Families Act 1997 (Tas) s 8; Children and Community Services Act 2004 (WA) s 7; and Children’s Protection Act 1993 (SA) s 4.

[8] See for example Patrick Parkinson and Judy Cashmore, The Voice of a Child in Family Law Disputes (2008); The Non-government Report on the Implementation of the United Nations Convention on the Rights of the Child in Australia May 2005, 11 – 12; Sally Hamilton and James McDougall “Children and the law – A lawyer’s role” (2010) 96 Precedent 13-18, Chief Justice Diana Bryant “Children both seen and heard” (2008) 92 Reform 21-24; and Harries et al, ‘Shifting the child protection juggernaut to earlier intervention’, (2009) 34(3) Children Australia, 5-8.

[9] Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention: Concluding Observations: Australia, UN Doc CRC/C/15/Add.268 (20 October 2005).

[10] Council of Australian Governments, Protecting Children is Everyone’s Business: Framework for Protecting Australia’s Children 2009–2020 (April 2009), foreword.

[11] Notwithstanding the important work of the National Child Protection Clearinghouse. See at 9 April 2010.

[12] See McDougall et al “Seen and Heard Revisited” (2008).

[13] See Convention on the Rights of the Child, opened for signature 20 November 1989, 1557 UNTS 3, preamble (entered into force 2 September 1990).

[14] Cathryn Moynihan, ‘Justice For All… Unless You’re a 17-year-old Queenslander’ (2007) 61 Head Note 20.

[15] Committee on the Rights of the Child, above n 6, 15 [74].

[16] Katrina Wong et al. Bail me Out: NS W Young People and Bail (2010) Youth Justice Coalition.

[17] Based on state and territory achievement score data. See at 23 March 2010.

[18] Sarah Smiles “Age Increases education gap for Indigenous Children, The Age (Canberra), 1 April 2008.

[19] The curriculum is being developed by the Australian Curriculum Assessment and Reporting Authority. see at 9 April 2010.

[20] The population of the Northern Territory is 200 000 people, spread across an area well over one million square kilometres which contains about 100 different languages.

[21] National Aboriginal Community Controlled Health Organisation, What’s Needed to Improve Child Health in the Aboriginal and Torres Strait Island Population (2003), 6.

[22] see Australian Law Reform Commission “Seen and Heard Report” (1997), McDougall et al “Seen and Heard Revisited” (2008), FAHCSIA’s report “The Road Home” and Australia’s Combined Second and Third Reports under the Convention on the Rights of the Child (2003).

[23] Australian Law Reform Commission “Seen and Heard Report” (1997), Australian Law Reform Commission “Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families” April 1997; Australian Law Reform Commission “A last Resort? National Inquiry into children in immigration detention” (2004).

[24] Farah Farouque and Fran Rimrod, ‘Boy, 12, to Fight Stolen Freddo Charges’, The Age (Melbourne) 16 November 2009.

[25] See for example s 38(1) Criminal Code Act (NT); s 344 Children, Youth and Families Act 2005 (Vic); s 5 Young Offenders Act 1993 (SA); and s 5 of the Children (Criminal Proceedings) Act 1987 (NSW).

[26] Ben Matthews, Australian Laws Ascribing Criminal Responsibility to Children: The Implications of an Internal Critique, Post-modern Insights, and a Deconstructive Exploration (PhD Thesis, Queensland, 2001).

[27] ‘Thousands of crimes by under-10s’, BBC News UK, 2 September 2007 <http://news.bbc.co.uk/2/hi/uk_news/6974587.stm> at 9 February 2010.

[28] Statute of the Child and Adolescent 1990 (Brazil), art 2.

[29] Sergio Shecaira, ‘Brazil: Criminal Responsibility of Minors in National and International Legal Orders’ (2004) 75(1-2) International Review of Penal Law 201.

[30] For example in NSW, the Minister for Juvenile Justice has commissioned a strategic review of Juvenile Justice Policy and Practice, auditing the current juvenile justice police, practice and strategies in NSW. See generally, Department of Human Services NSW, NSW Juvenile Justice Policy Review: Terms of Reference – Review of NSW Broader Strategic Juvenile Justice Policy in NSW <http://svc233.wic007tv.server-web.com/strategic_review_terms_of_reference.htm> at 1 March 2010.

[31] Andrew Becroft, ‘Trial and Treatment of Youth Offenders: Human Rights at the Coalface of Youth Justice’ (Speech delivered at the Commonwealth Law Conference, London, September 2005) < http://www2.justice.govt.nz/youth/publications/conference-london-sept-2005/london-conference-sept-2005.pdf > at 1 March 2010.

[32] s 208(a).

[33] Andrew Becroft, ‘Community-Based Approaches to Youth Offending: A Recipe For Success’ (Speech delivered at the Conference on the Rehabilitation of Youth Offenders, Singapore, 21 – 22 November 2007) at 2 March 2010.

[34] Andrew Becroft, ‘How to Turn a Child Offender into an Adult Criminal – In 10 Easy Steps’ (Speech delivered at the Children and the Law International Conference, 7 September 2009) at 2 March 2010.

[35] Kathleen Daly, ‘Conferencing in Australia and New Zealand: Variations, Research Findings, and Prospects” in Allison Morris and Gabrielle Maxwell (eds), Restorative Justice for Juveniles (2001).

[36] Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84 (1997) 18.54.

[37] See Part 5 of the Young Offenders Act 1997 (NSW).

[38] Mark Griffiths, ‘The Implementation of Group Conferencing in Juvenile Justice in Victoria’ (Paper presented at the Restoration for Victims of Crime Conference, Melbourne, September 1999) at 2 March 2010.

[39] Lawrence Sherman, Heather Strong and Daniel Woods, Recidivism patterns in the Canberra Reintegrative Shaming Experiment (RISE) (2000) Centre for Restorative Justice.

[40] Sumitra Vignaendra and Jacqueline Fitzgerald, ‘Reoffending among young people cautioned by police or who participated in a youth justice conference’, 103 Crime and Justice Bulletin, NSW Bureau of Crime Statistics and Research, October 2006, 13.

[41] Gabrielle Maxwell et al, Achieving Effective Outcomes in Youth Justice: An Overview of Findings (2004) New Zealand Ministry for Social Development.

[42] Gabrielle Maxwell and Allison Morris, ‘Family Group Conferences and Reoffending’ in Allison Morris and Gabrielle Maxwell (eds), Restorative Justice for Juveniles (2001).

[43] Kenneth Polk et al, Early Intervention: Diversion and Youth Conferencing – A National Profile and Review of Current Approaches to Diverting Juveniles from the Criminal Justice System (2003) Australian Government Attorney General’s Department.

[44] Hennessey Hayes, Tim Prenzler and Richard Wortley, Making Amends: Final Evaluation of the Queensland Community Conferencing Pilot (1998).

[45] Lily Trimboli, An Evaluation of the NSW Youth Justice Conferencing Scheme (2000).

[46] Rosemary Cant and Rick Downie, Evaluation of the Young Offenders Act (1994) and the Juvenile Justice Teams (1998) Social Systems and Evaluation (Perth).

[47] Allison Morris and Gabrielle Maxwell, ‘Restorative Justice in New Zealand: Family Group Conferences as a Case Study’ (1998) 1(1) Western Criminology Review 1.

[48] Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84 (1997)18.54.

[49] Gabrielle Maxwell et al, “Differences in how girls and boys respond to family group conferences: preliminary research results”, (2001) 17 Social Policy Journal of New Zealand.

[50] Ministry for Justice E-flash 9A, May 18 2009.

[51] See, for example, the Hon James Wood AO QC, Report of the Special Commission of Inquiry into Child Protection Services in NSW, vol 3, pp 837-839.

[52] The regime includes legislation and accompanying guidelines and manuals, which regulate the issue either specifically or through general statements.

[53] Dr Joseph McDowall (2009). CREATE Report Card 2009 – Transitioning from care: Tracking progress. Sydney: CREATE Foundation.

[54] Children and Young Persons (Care and Protection) Act 1998 (NSW) s 166.

[55] Children and Young Persons (Care and Protection) Act 1998 (NSW) s 165.

[56] Dr Joseph McDowall (2009) CREATE Report Card 2009 – Transitioning from care: Tracking progress. Sydney, CREATE Foundation, 77.

[57] Secretary, Department of Health and Community Services v JWB and SMB (1992) FLC 92-293.

[58] Director-General, Department of Community Services; Re Jules, [2008] NSWSC 1193, 7.

[59] G v P [1977] VR 44, per Kaye J at 46.

[60] see Explanatory Memorandum, Family Law Reform Bill 1994, page 73, paragraph 319; Director-General, Department of Community Services; Re Jules, [2008] NSWSC 1193; Secretary, Department of Health and Community Services v JWB and SMB (1992) FLC 92-293; Ray and Anor & Males and Ors [2009] FamCA 219 at 79.

[61] W and G (No 2) (2005) FLC 93 – 248 per Carmody J at 123.

[62] K v Minister for Youth and Community Services at 326F.

[63] (1992) FLC 92-293.

[64] [1986] AC 112 at 186.

[65] see Re W (a minor) (medical treatment) [1002] 4 All Er 627; Re R [1999] 4 All ER 177.

[66] L v T (1999) FLC 92-875.

[67] (2004) 219 CLR 365.

[68] See generally Parliamentary Library Law Internet Resources of Terrorism Laws <http://www.aph.gov.au/library/INTGUIDE/law/terrorism.htm> at 26 March 2010 for a chronology of Australia’s Anti-Terrorism Laws.

[69] Michael Walton “The Anti-Terrorism Bill (No 2) 2005: An Overview” in Human Rights Defender, Special Issue, The Anti-Terrorism Bill (No 2) 2005, November/December 2005, 4 <http://www.ahrcentre.org/documents/Human_Rights_Defender-The_Anti-Terrorism_Bill_%20(No2)_2005.pdf> at 26 March 2010.

[70] [2007] HCA 33.

[71] Criminal Code Act 1995 (Cth) 104.28.

[72] Criminal Code Act 1995 (Cth) 104.28.

[73] Part III, Division 3, s 34ZE (4).

[74] Criminal Code Act 1995 (Cth) 104.2(2).

[75] Criminal Code Act 1995 (Cth) 104.5(3).

[76] See, for example, section 26K(2) of the Terrorism (Police Powers) Act 2002 NSW.

[77] For example under section 105.4 of the Criminal Code Act 1995 (Cth) and 26D of the Terrorism (Police Powers) Act 2002 NSW.

[78] Michael Walton “The Anti-Terrorism Bill (No 2) 2005: An Overview” in Human Rights Defender, Special Issue, The Anti-Terrorism Bill (No 2) 2005, November/December 2005 <http://www.ahrcentre.org/documents/Human_Rights_Defender-The_Anti-Terrorism_Bill_%20(No2)_2005.pdf> at 26 March 2010.

[79] Criminal Code Act 1995 (Cth) 105.42.

[80] Executive Summary and Recommendations, Report of the Special Commission of Inquiry into Child Protection Services in NSW, 2008, ii.

[81] Opening Address by Commissioner Wood, Special Commission of Inquiry into Child Protection Services in NSW, 17 December 2007, 3.

[82] Opening Address by Commissioner Wood, Special Commission of Inquiry into Child Protection Services in NSW, 17 December 2007, 3.

[83] Keep them Safe: A Shared Approach to Child Wellbeing, March 2009, II.

[84] Executive Summary and Recommendations, Report of the Special Commission of Inquiry into Child Protection Services in NSW, 2008, ii – iii.

[85] Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009, Schedule 1.

[86] Little Children Are Sacred (2007), Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, 2007.

[87] Protecting Children is Everyone’s Business – National Framework for Protecting Australia’s Children 2009-2020, Council of Australian Governments, 2009, 9.

[88] Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06. Information on the current progress of this case and the trial hearing is available on the ICC website.

[89] OHCHR, at 15 February 2010.

[90] UNICEF, at 15 February 2010.

[91] Convention on the Rights of the Child, opened for signature 20 November 1989, 1557 UNTS 3, art 2(1) (entered into force 2 September 1990).

[92] David Balton, (1990) 12 HRQ 120, 126.

[93] Convention on the Rights of the Child, opened for signature 20 November 1989, 1557 UNTS 3, art 44 (entered into force 2 September 1990).

[94] Convention on the Rights of the Child, opened for signature 20 November 1989, 1557 UNTS 3, art 45(d) (entered into force 2 September 1990).

[95] The International Covenant on Civil and Political Rights, Convention on the Elimination on all Forms of Discrimination, Convention on the Elimination of all Forms of Racial Discrimination and the Convention Against Torture.

[96] Sharon Detrick, A Commentary on the United Nations Convention on the Rights of the Child 1999, p 719; Rita Shackel, [2003] AILJ 21, 46.

[97] Article 45(a).

[98] 560/1993, April 1997.

[99] in contrast to the previous communication in Toonen v Australia 488/1992, 4 April 1994.

[100] Joanne Kinslor, (2002) 8(2) AJHR 79, 83.

[101] Joanne Kinslor, (2002) 8(2) AJHR 79, 83.

[102] Sharon Detrick above n 106.

[103] (2007) 98 SASR 136; [2007] SASC 285 at [946].

[104] [2009] FamCA 1038.

[105] Article 1.

[106] in accordance with Family Law (Child Abduction Convention) Regulations 1986 (Cth) s 68LA(2).

[107] [2008] FamCA 519.

[108] Children, Youth and Families Act 2005 (Vic) s 344.

[109] ABC Television, “Bullying ruling opens door for compo claims”, Lateline, 10 March 2010, at 16 March 2010.

[110] This report commissioned by the Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission in 1997 is a comprehensive analysis of the legal system and the ways in which it serves (or fails to serve) children and young people.

[111] National Youth Commission, Australia’s Homeless Youth: A report of the National Youth Commission Inquiry into Youth Homelessness, Letter to the Australian Community p V, at 23 March 2010.

^ Back to Top

Human Rights News Stories for the week ending 16 April 2010

hrlrc — Fri, 16 Apr 2010 00:47:27 +0000

Here are some of the top human rights new stories from the past week -

Senior weapons training officer from Victoria Police tells inquest that tasers could ignite capsicum spray if used together:
http://www.abc.net.au/news/stories/2010/04/13/2871575.htm

Australia’s changing demographic means courts increasingly have to deal with cultural traditions which involve violence against women, according to New South Wales Chief Justice Jim Spigelman:
http://www.abc.net.au/news/stories/2010/04/16/2874376.htm

Tony Abbott’s office clarifies comments he made suggesting a permanent ban on asylum-seekers who arrive by boat being granted permanent residency:
http://www.theaustralian.com.au/politics/abbotts-office-plays-down-asylum-seeker-remarks/story-e6frgczf-1225854205067

Danish government concerned its position on Sri Lankan asylum-seekers is being misrepresented in Australia after Rudd government ministers wrongly claimed a “number of countries” had suspended refugee applications from Tamils:
http://www.theaustralian.com.au/politics/danes-deny-refugee-ban-on-tamils/story-e6frgczf-1225854288628

Immigration Department officials ordered to back off all non-essential visa checking as mainland detention centres are at risk of overflowing due to the constant transfer of asylum-seekers from Christmas Island:
http://www.theaustralian.com.au/politics/boat-crisis-forces-visa-raid-halt/story-e6frgczf-1225854305051

Australia should drop censorship plans, says US Ambassador to Australia in response to plans for mandatory internet filters to combat illegal online content:
http://www.theaustralian.com.au/australian-it/australia-should-drop-filter-plan-us/story-e6frgakx-1225853103529

Victorian Equal Opportunity and Human Rights Commission releases its 2009 report on the operation of the Victorian Charter:
http://www.humanrightscommission.vic.gov.au/publications/charter%20reports/

Consultations begin on a national disability insurance scheme:
http://www.jennymacklin.fahcsia.gov.au/internet/jennymacklin.nsf/content/
jm_m_natioanldisabsupport_14april2010.doc.htm

The Federal Government welcomes a proposed enterprise agreement which will consider domestic violence as a workplace issue:
http://www.abc.net.au/news/stories/2010/04/15/2874065.htm

Workplace tribunal rules that workers cannot contract out their award right to be compensated for working overtime, even when they volunteer to work the hours to suit their personal circumstances:
http://www.theaustralian.com.au/business/workers-cant-sell-off-overtime-rights-tribunal-rules/story-e6frg8zx-1225854291706

City-based Indigenous drug and alcohol services receiving less funding per capita than their rural counterparts, according to an Australian National Council on Drugs report:
http://www.abc.net.au/news/stories/2010/04/13/2871204.htm

Federal government is paying three times more than necessary to rebuild derelict homes in the remote Northern Territory Aboriginal community of Willowra, according to a local government business manager:
http://www.theaustralian.com.au/news/nation/housing-program-paying-too-much/story-e6frg6nf-1225854292895

2010 Human Rights Dinner with Louise Arbour and Rob Hulls – 14 May 2010

hrlrc — Tue, 13 Apr 2010 05:02:30 +0000

The Human Rights Law Resource Centre
and the
Public Interest Law Clearing House
present the

2010 Human Rights Dinner

with

Louise Arbour

President and CEO, International Crisis Group
Former United Nations High Commissioner for Human Rights (2004-08)

and

Rob Hulls

Deputy Premier of Victoria
Attorney-General of Victoria

Date: Friday, 14 May 2010

Time: 7.00pm to 11.45pm

Venue:            Melbourne Convention and Exhibition Centre
                      1 Convention Centre Place, South Wharf , Melbourne
                      (Hilton South Wharf entrance, Rooms 210 and 211)

Tickets: $120 per person ($75 for community and non-profit organisations)

RSVP: 3 May 2010 by using the Booking Form

About Louise Arbour

Louise Arbour is President and CEO of the International Crisis Group, a leading global NGO working to prevent and resolve deadly conflict.

From 2004 to 2008, Ms Arbour held the office of United Nations High Commissioner for Human Rights.

Ms Arbour was a judge of the Supreme Court of Canada from 1999 to 2004, prior to which she was Chief Prosecutor for the International Criminal Tribunals for the former Yugoslavia and for Rwanda.

Among many other honours, Ms Arbour has received the United Nations Human Rights Prize, been made a Companion of the Order of Canada and been conferred with over 30 honorary doctorates.

Seminar with Professor Philip Alston, UN Special Rapporteur on Extrajudicial Killings – 19 May 2010

hrlrc — Tue, 13 Apr 2010 03:17:54 +0000

The Rise of Targeted Assassinations and the Implications for International Law

with

Professor Philip Alston

UN Special Rapporteur on Extrajudicial Killings

This seminar is presently jointly by the Castan Centre for Human Rights Law and
the Human Rights Law Resource Centre.

Time: 6pm to 7pm

Date: Wednesday, 19 May 2010

Venue: Monash University Law Chambers, 472 Bourke Street, Melbourne

RSVP: Free public lecture but registration essential to castan.centre@law.monash.edu.au
or (03) 9905 3327

About Philip Alston

Submission on Issues to be Included in the Australian Government’s Report under the UPR (April 2010)

hrlrc — Mon, 12 Apr 2010 07:07:13 +0000

The HRLRC has made a submission to the Attorney-General’s Department on information to be included in the Australian Government’s report to the Universal Periodic Review. The Australian Government has requested two-page submissions from the public to be provided by 16 April 2010.

The HRLRC’s submission:

addresses positive developments that should be included in the Australian Government’s report; and
identifies a number of areas of concern and challenge regarding the protection and promotion of human rights in Australia.

Further information on Australia’s review under the UPR process is available at http://www.hrlrc.org.au/content/topics/international-human-rights-mechanisms/universal-periodic-review-of-australia-in-february-2011/.

Human Rights News Stories for the week ending 9 April 2010

hrlrc — Fri, 09 Apr 2010 02:09:47 +0000

Here are some of the top human rights new stories from the past week -

Australia freezes Sri Lankan and Afghan asylum-seeker visa bids:
http://www.theage.com.au/national/australia-freezes-sri-lankan-and-afghan-asylumseeker-visa-bids-20100409-rwbe.html

National survey suggests one in four Australians believe that women falsify or exaggerate claims of rape and domestic violence:
http://www.abc.net.au/news/stories/2010/04/07/2865967.htm

People smuggling is ”totally out of control” in Indonesia says the United Nations High Commissioner for Refugees:
http://www.theage.com.au/national/un-warns-of-surge-in-indon-boats-20100408-rv3d.html

Church leaders behind a graphic crucifixion re-enactment halted by police will challenge ‘unfair treatment of religious demonstrations’ and ‘double standards’:
http://www.heraldsun.com.au/news/crucifix-church-to-complain-to-simon-overland-after-re-enactment-halted/story-e6frf7jo-1225850617377

Hundreds of Tamil asylum-seekers could be sent home if new UN guidelines reflect Sri Lanka’s improved humanitarian situation:
http://www.theaustralian.com.au/news/tamils-face-return-in-un-review/story-e6frg6n6-1225851588026

Call for changes to NSW’s tough bail laws which may undermine the presumption of innocence and the separation of powers:
http://www.smh.com.au/nsw/cowdery-backs-call-to-change-bail-laws-20100408-rv5q.html

Transgender challenge to rules on birth certificates:
http://www.smh.com.au/nsw/transgender-challenge-to-rules-on-birth-certificates-20100407-rsb0.html

Sydney City garbage workers march to Lord Mayor Clover Moore’s office in protest at new contracts they say leave workers underpaid:
http://www.abc.net.au/news/stories/2010/04/08/2867649.htm

Salvation Army to open a commercial law firm with profits to fund humanitarian work:
http://www.abc.net.au/news/stories/2010/04/05/2864492.htm

Former High Court Justice Michael Kirby slams government inaction on same-sex marriage:
http://www.abc.net.au/news/stories/2010/04/08/2867537.htm

Setting the Human Rights Agenda

hrlrc — Tue, 06 Apr 2010 00:22:57 +0000

Policy Brief on Foreign Policy and Human Rights
(6 April 2010)

The Human Rights Law Resource Centre is preparing a series of policy briefs intended to inform and advance the human rights agenda in Australia. Each brief identifies a human rights problem or opportunity, discusses the imperative for action, adduces and analyses relevant evidence, and makes concrete recommendations for Australia to advance the agenda at the international and national levels.

a principled approach to universal human rights and accountability;
multilateralism and engagement with the United Nations; and
empowering communities and supporting NGOs.

Policy Brief on Business and Human Rights
(22 March 2010)

The policy brief on ‘Business and Human Rights’ contends that the further development and operationalisation of the business and human rights agenda presents a significant opportunity and responsibility for Australia, both at the international and domestic levels. It contains 15 recommendations for Australian action at the international and local levels.

The brief makes 6 concrete recommendations for Australian action at the international level, including explicitly adopting the Special Representative’s framework as a basis for Australia’s approach to corporate human rights law and policy, and conducting conduct human rights impact assessments of proposed multilateral and bilateral trade and investment agreements, together with major public-private projects.

The brief makes 8 recommendations for Australian action at the local level, including using public procurement to reinforce the responsibility of business to respect human rights and to promote socially and environmentally responsible governance, and amending the Corporations Act 2001 to require (or at the very least explicitly permit) directors to consider human rights issues as an aspect of their duty to act in the best interests of the company.

Human Rights Law Resource Centre

Human Rights News Stories for the week ending 23 April 2010

HRLRC Bulletin Vol 49 – May 2010

Opinion

Australia’s New Human Rights Framework: Icing without a Cake

News

Human Rights Council Calls for Development of Individual Complaints Procedure for Violations of Children’s Rights

DLA Phillips Fox Continues Strong Support for Centre

Victorian Department of Justice Increases Funding for Centre and Promotion of Human Rights

National Charter of Rights Developments

Australian Government Announces New Human Rights Framework

The Church and the Charter: What Must Christians Do Better?

Victorian Charter of Rights Developments

‘Making Progress’: Human Rights Commission Releases 2009 Report on Charter

News Case Studies on the Role of a Charter of Rights in Promoting Dignity and Addressing Disadvantage

Victorian Charter Case Notes

Eviction of Vulnerable Tenant from Public Housing without Adequate Justification a Breach of Human Rights

Comparative Law Case Notes

Right to Privacy and Protection of Children and Families

Balancing the Right to Non-Discrimination and Freedom of Religious Belief in the Provision of Charitable Services

Same-Sex Relationships: Right to Non-Discrimination and Succession to Public Tenancy

Possession Orders and the Right to Privacy and the Home

‘Deeming’ Traffic Offences Breaches Right to Presumption of Innocence and Silence

Refugee Rights and Non-Refoulement: Proposed Transfer of Asylum Applicant from UK to Greece did not Breach European Convention

HRLRC Policy Work

Setting the Agenda: Policy Brief on Foreign Policy and Human Rights

Enhancing Parliament’s Role in the Protection of Human Rights: Insights from the UK

Submission to Australian Government on Australia’s Report for the Universal Periodic Review

Report of Review of the Equal Opportunity for Women in the Workplace Act

Freedom of Religion: Submission to Commission of Inquiry into the Right to Freedom of Religion in Samoa

HRLRC Casework

Special Leave to Appeal to High Court Sought in Landmark Charter Case

Seminars and Events

2010 Human Rights Dinner – 14 May 2010

‘The Rise of Targeted Assassinations and the Implications for International Law’

Castan Centre 2010 Human Rights Conference – 16 July 2010

Human Rights Resources

HRLRC in the News

New Issue of Alternative Law Journal – ‘New Laws – Same Old Problems’

Human Rights Jobs

Senior Human Rights Advisor, Victorian Human Rights and Equal Opportunity Commission

Foreign Correspondent

Developments from the UN and in International Human Rights Law and Practice

If I Were Attorney-General…

A Real Walk for Justice

New Human Rights Framework a Step in the Right Direction, but a Human Rights Act Deferred is Human Rights Denied

Special Children’s Rights Edition of the Human Rights Law Resource Centre Bulletin

Contents

NCYLC 2010 Children’s Law Awards

Winners of the 2010 Children’s Law Awards

National Finalists of the 2010 Children’s Law Award

Convention on the Rights of the Child: The State of Play in Australia

Current Protections: Limitation of the State-Based Approach

National Implementation

Youth Justice

Education

Health

Conclusion

Why Australia needs a National Children’s Commissioner

Reasons why Australia needs a Child Commissioner

The Australian Human Rights Commission, State Children’s Commissioners and the Commonwealth Ombudsman – Isn’t This Enough?

Global Progress to Protect Children’s Rights

Role of a National Children’s Commissioner

Framework for the National Commissioner

Structure of the Commissioner for Children:

Conclusion

The Age of Criminal Responsibility

Increasing Australia’s Minimum Age

Youth Justice Conferencing: Achieving Restorative Justice?

An analysis of Australia and New Zealand

New Zealand

Australia

Achieving Objectives?

Rates of Recidivism

Widening Social Participation

Response to Criticisms/Proposals

Conclusion

Turning 18 and Leaving Care

The Need for Transitional Support

When is a Plan Made and to what Extent?

Policy Brief on Foreign Policy and Human Rights
(6 April 2010)

Policy Brief on Business and Human Rights
(22 March 2010)