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Using the Victorian Charter of Human Rights and Responsibilities

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1 Using the Victorian Charter of Human Rights and Responsibilities
Phoebe Knowles Secondee Lawyer PILCH Homeless Persons’ Legal Clinic and Human Rights Law Resource Centre (03)

2 Outline Creating the space to use the Charter: Step by Step guide
in oral submissions before VCAT (or any other Victorian court); in advocacy with the other side; and in written submissions. Step by Step guide Key messages: Be bold Do your homework: back up your arguments with evidence and analysis

3 Case study Facts: Client: Bec is a pregnant, single mother to two children and lives in community housing. Landlord: The landlord is community housing association. Its sole function is the provision of community housing and it receives substantial assistance and funding from local and State Government. Procedural background: Bec fell behind in rent and so following a VCAT proceeding, entered a payment plan to repay arrears. Potential breaches by client: Bec is currently in arrears. Following an inspection, the landlord requested Bec clean some hand marks and scrapes from the walls and clean 3 stains on the carpet. Bec has cleaned the walls and intends on cleaning the carpets as soon as possible. Her ex-partner has caused disruption at the property in the past. Bec took out a restraining order against him. Shortly after the inspection of the property took place Bec was served with a 120 notice to vacate under s 263 of the Residential Tenancy Act (RTA). Section 263 of the RTA enables a landlord to evict a tenant without reason.

4 Getting started Scenario: client telephones with a complaint. What do you do? In order to use the Charter in oral or written submissions, some answers must first be found: Is there a human right which is engaged? Which one? Is your respondent a public authority? What are their obligations under the Charter, other statutes and at common law? What are the weaknesses of your case? Is the limitation on human rights justified? What do you want to achieve?

5 Identifying the rights (1)
Step 1: Does the action complained of engage one of the following concepts? F reedom: movement, assembly, expression, religion, association, liberty R espect: life, protection of families, cultural rights E quality: non-discrimination, equal recognition D ignity: torture, cruel treatment, privacy, reputation, humane treatment in detention

6 Identifying the rights (2)
Step 2: Identify the right in the Charter Look through the Charter! Take some time to consider the matter and the issues it brings up. Right to life (s 9) Right to live with human dignity Right to liberty and security of person (s 21) Homelessness means people live without the protection of a safe and secure place to live, adequate food, clothing and shelter. Protection from cruel, inhumane or degrading treatment or punishment (s 10) Physical and mental integrity and dignity Right to privacy (s 13) Arbitrary or unlawful interference with privacy, family, home or correspondence Protection of families and children (s 17)

7 Against whom can you bring the arguments?
Step 3: Is the entity complained about a “public authority”? Definition found in section 4 includes core and functional Start researching your respondent. Look at their website and public profile. What is the function they perform? Do we identify this function with the state? Do they receive public funding? Do they maintain a relationship with the state? Step 4: If the respondent is a public authority, what are its obligations under the Charter? How should your client have been treated?

8 Step back Step 5: Are there other causes of action available to you?
Consider your respondent’s obligations under statute and at common law (e.g. Housing Act, OH&S, Wrongs Act, TPA, RTA) Step 6: Deal with the facts and weaknesses of your case At this point, you should have a sense of your case – step back, are your arguments sensible and honest? Reality check your position and potential arguments.

9 Is the action a reasonable limitations on human rights?
Step 7: Analyse the action to ascertain whether it is a justified limitation s 7 Human rights – what they are and when they may be limited (2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom and taking into account all relevant factors, including – (a) the nature of right; and (b) the importance of the purpose of limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

10 Pulling everything together (1)
Step 8: Collate your findings and develop your arguments Step 9: What does your client want? From the court: Human rights compatible interpretation of legislation: s 32(1). This is a new, overarching principle of statutory interpretation. Consideration of international and comparative human rights law and jurisprudence: s 32(2). Declarations of Inconsistent Interpretation: s 36. Judicial review, injunctive and declaratory relief: s 39(2). From the public authority: Obligations under the Charter on public authorities (s 38): give ‘proper consideration’ to human rights in decision-making processes and act compatibly with human rights; and interpret their statutory obligations compatibly with human rights (s 32) Public Administration Act 2004 (Vic) (s 37) requires public officials to respect, promote, implement and support human rights.

11 Pull everything together (2)
Step 9: What does your client want? (cont’d) From the Ombudsman Consequential amendments to the Ombudsman Act 1973 (Vic): Ombudsman may enquire into or investigate whether any administrative action is incompatible with human rights Remedial powers include recommendation that authority: Apologise Change policy, procedure or practice Compensate Institute disciplinary or criminal proceedings Step 10: go for it!

12 General Tips… Know your audience Know your stuff Know your client
Know the rights Know the law Know your client Human rights lawyering focuses on the individual whose rights have been violated. It’s not about the cause.

13 Research tools - International Jurisprudence
UN Treaty Body Database UN Human Rights Committee UN Special Rapporteurs Other treaty bodies

14 Research tools - Regional Jurisprudence
European Court of Human Rights Inter-American Commission on Human Rights Inter-American Court on Human Rights African Commission on Human and Peoples’ Rights

15 Research tools - Comparative Domestic Jurisprudence
Commonwealth ACT – Human Rights Act 2004 UK – Human Rights Act 1998 New Zealand – Bill of Rights Act 1990 Canada – Charter of Rights and Freedoms 1982

16 PILCH Homeless Persons’ Legal Clinic
Further Information PILCH Homeless Persons’ Legal Clinic Level 1, 550 Lonsdale Street Melbourne VIC 3000 (03) The Human Rights Law Resource Centre has an excellent website for human rights research:

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