1. Living Well with HIV - a Human Rights Perspective
Dr Helen Watchirs
Human Rights & Discrimination Commissioner
ACT Ministerial Advisory Council on Sexual Health, Hepatitis C & Related Diseases Stakeholder Forum, CIT
6 August 2009

2. Human Rights & Discrimination Commissioner Mandate
Promote understanding, acceptance & compliance with
1. Human Rights Act 2004,
2. Human Rights Commission Act 2005 &
3. Discrimination Act 1991 – about 100 complaints pa
Two other Commissioners handle:
1. health services (including privacy of medical records)
2. services for older people
3. disability services
4. services for children & young people
No HR complaints function, but inspection power under Corrections Management Act 2007
S.41(1) review/report on effect of laws to Attorney-General, eg HR Audits of Quamby (2005) & adult remand centres, BRC, STRC, PDC (2007).
S.36 seek leave to intervene in courts/tribunals

3. Discrimination Act
Direct Discrimination: person treated unfavourably because of attribute
Indirect Discrimination: unreasonable condition or requirement that is imposed which has, or is likely to have, the effect of disadvantaging persons with an attribute
the attribute to have been only one of any number of reasons for unfavourable treatment
Exceptions, eg other laws, voluntary bodies
Exemption applications, eg Raytheon
attribute can be known or presumed, eg HIV
3 elements: Unfavourable Treatment; Personal Attribute; & Public Life

4. Necessary elements: discrimination
Protected attributes
disability including future disability
membership/non of an association of employers or employees
profession, trade, occupation or calling, eg sex work
race (including colour, descent, ethnic and national origin and nationality)
sex
Sexuality and transsexuality
status as a parent or carer, or relationship status
association
Unfavourable treatment:
Detriment: loss, harm or damage
Sexual Harassment (offended, humiliated, intimidated)
Vilification - ‘public act’ that ‘incites hatred towards, serious contempt for, or severe ridicule of a person or group’: Emelyn-Jones v National Capital Press ( ) need for reform
Victimisation (detriment)

5. Areas of public life Education Employment Agencies
Employment including:
* Applicants
* Employees
* Commission agents
* Contract workers
* Partnerships
Qualifying bodies
Professional or Trade organisations
Unlawful advertising
Access to Premises
Goods, Services and Facilities
Accommodation
Clubs
Requests for Information

6. Complaint handling Consider/investigate – all parties involved
Natural justice, and not bound by rules of evidence
Decision – issues raised under Act, without substance, or already been adequately dealt with etc
Conciliation if appropriate;
Refer to Administrative Review Tribunal (from 1 February 2009)
Standard of proof: balance of probabilities - up to the complainant to support allegations; and up to the respondent to support claim to an exception
Disability exceptions:
genuine occupational qualification
ability to perform the essential work of the job – X (HC)
unjustifiable hardship - nature of benefit or detriment & disability; financial circumstances/expense
general - special measures
general - other laws

7. HIV & Human Rights
International Guidelines HIV/AIDS & Human Rights & UN Declaration of Commitment (2001)
Obligations to respect, protect, fulfil HR
UN HR treaties – mechanisms for accountability, eg reporting, complaints
Breaches can be by action/inaction of government
Not just rhetoric: realise in laws, policies, programs at local & national levels
Informing & capacity building – know rights and responsibilities: individuals & service providers/government
Public health & human rights complement/conflict

8. Human Rights Act 2004
From 1 July 2004 laws to be interpreted consistently with human rights
From 1 January 2009 ‘public authorities’ are required to act and make decisions consistently with human rights. Right of action to ACT Supreme Court for violations – remedies, eg declarations, not compensation generally.
Section 10: ‘(1) No-one may be tortured or treated or punished in a cruel, inhuman or degrading way.
(2) No-one may be subjected to medical or scientific experimentation or treatment without his or her free consent.’
Section 19: ‘(1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
(2) An accused person must be segregated from convicted people except in exceptional circumstances’
(2) An accused person must be treated in a way that is appropriate for a person who has not been convicted
Others – s.8 equality, s.11 family, s.12 privacy, s.14 religion/belief, s.15 association, s,16 expression and information, s.18 liberty and security of person, .s.26 freedom form forced work, s. 28 minority cultures/languages

9. HIV criminal transmission offences
Stigmatises alienated groups, eg MSM, sex workers, injecting drug users. Scapegoats PLWHAs as potential criminals – harder to reach, fear confidentiality breaches, hide behaviour, reluctant to access services
Focus on unpopular & vulnerable groups – false sense of security in general population (us v them). Media hysteria fuelled
Coercion not very successful to control intimate, voluntary, private behaviour (eg sex, drugs). Behaviour - complex motivations eg denial
Purpose of criminal law: retribution/punishment; deterrence; incapacitation; rehabilitation
Criminal justice system – intrusive policing
Mostly unintentional, not deliberate - majority unaware that HIV+
Law should not be a barrier to HIV-testing – cover negligent/reckless behaviour?
Public health message – take responsibility for safe behaviour & HIV prevention - undermined by blame: guilty/innocent
HIV not curable like some STDs (forced treatment), but chronic illness
Restrictions on living circumstances for serious recalcitrant cases (not just HIV status). Structured criteria: behaviour in past & likely to continue; counselling to change unsuccessful; danger to others - ‘real risk’ of transmission

10. Relevant UN Standards for Audit
International Covenant on Civil & Political Rights (ICCPR) – rights to life, humane treatment in detention
International Covenant on Economic, Social and Cultural Rights (ICESCR) – right to physical & mental health
UN Convention Against Torture & Other Cruel, Inhuman & Degrading Treatment & Punishment (CAT) – new Optional Protocol Australia signed
UN Basic Principles for the Treatment of Prisoners – P9 ‘prisoners shall have access to the health services in the country without discrimination on the grounds of their legal situation’.
United Nations Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment
Standard Minimum Rules for the Treatment of Prisoners
International Guidelines on HIV/AIDS & Human Rights (1996) UNAIDS & OHCHR – G4 ‘prison authorities should provide prisoners with access to the means of prevention (condoms, bleach & clean injecting equipment)’
WHO Guidelines on HIV Infection & AIDS in Prisons – A(1) ‘all prisoners have the right to receive health care, including preventative measures, equivalent to that available in the community without discrimination…’ and P24 ‘consideration should be given to providing clean injecting equipment during detention & on release to prisoners who request this’.

11. HR Audit Recommendations
Urgent matters – overcrowding; mental health care; time-out of cells (many ‘lockdowns’ in 2006/07); and organised activities
Humane treatment – cells; searches (eg strip – half body), drug testing; welfare; education; work; clothing; hygiene; contact; legal advice; media and library; information about rights
Health care – services; infection control and harm minimisation; general health (equivalence, allied health, dentistry, external consults and hospitals, medical records); limits on use of restraints in hospitals; prisoners at risk
Oversight - monitoring
Systemic discrimination – sensitivity to special needs of women & minorities; indigenous people; culturally and linguistically diverse populations; interpreters; cultural activities; protection detainees; religion; food
Corrections Culture – training de-escalation & anti-bullying, records
Monitoring custody rates – ATSI, research PDC, review fine default

12. Infection control & harm minimisation issues
NSPs opportunity to include safer sex education & means (eg condoms, dental dams)
harm minimisation approach protects the rights to life & health. denying protection against disease transmission in high-prevalence and closed population in prison may be viewed as inhumane.;
‘equivalence’ - ACT community-based needle & syringe programs;
numerous studies have demonstrated the efficacy of exchanges in communities around the world, as well as prisons in some countries. Evaluations of NSPs show reduction of needle sharing and infections, and do not increase drug consumption or demand;
contraband drugs expected and found in ACT - dependence on drugs or alcohol high, as well as mental disorders
duty of care to detainees – NSW negligence action in mid-1990s regarding access to condoms led to reform
returned to community as average short length of stay (eg 7 months)

13. Infection control and harm minimisation recommendations
ACT Government response: ‘policy does not support a needle & syringe exchange at this time. It is an ongoing matter for policy consideration’ (18 months after AMC opens June 2009, ie end 2010)
AMC pilot NSP program with provision for safe disposal of needles, or safe injecting room (medically supervised injecting facility).
Detainees must regularly be provided with information about the availability of condoms and other safeguards, as well as safe sex practices, in order to prevent sexually transmitted infections and diseases such as HIV/AIDS and Hepatitis B and C
In addition to installing a condom-dispensing machine, adequate means for disposing of condoms should be provided. A dispensing machine for latex gloves and dental dams should be provided for women at the AMC, along with adequate means of disposing of them.

14. The Future
AMC opportunity & investment - unique opportunity for human rights compliant prison with focus on rehabilitation treat people with respect & dignity
NSP partnership experts (eg public health, drug & alcohol), community & government
Federal Ministerial Advisory Council (MACBBVS) role – encouraging inclusion of human rights expert
UNAIDS 2009 World AIDS Day theme ‘Human Rights’
Federal consultation on Bill of Rights Public Hearings: 1-3 July 2009 Parliament House. Report in September 2009.
Survey as reluctance to self-disclosure is an indicator of the extent of stigma. Anti-discrimination laws focus on public acts of government and private bodies, but private acts such as relationships may be indirectly affected through a legal environment that sensitizes public opinion, and exposes stereotypes and scapegoating. As Martin Luther King said, laws against discrimination cannot change the hearts of men, but they can restrain the behaviour of the heartless.