Day 1 - Session 1: Laying the Foundations (Overview of Human Rights Law) John Tobin Faculty of Law, University of Melbourne

Objectives – Outline the human rights framework: what are they and where can we find them? Identify the basic principles of interpretation Understand how to undertake human rights research: a 6 step approach Examine the opportunities for using human rights in Australia especially Victoria But first….some home truths and warnings

Handy Tips # 1 - Know your audience Consider the context in which seeking to use HR Within the Australian legal, political or social landscape the cupboard has been bare…

At the federal level - A legal island… Al Kateb v Godwin [2004] HCA 37  It is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights. The function of the courts in this context is simply to determine whether the law of the Parliament is within the powers conferred on it by the Constitution: Justice McHugh para 74 NOTE: compare McHugh in Law week oration

A political fortress… Australia decides what happens in this country through the laws and the parliaments of Australia. I mean in the end, we are not told what to do by anybody. We make our own moral judgments… Australia’s human rights reputation compared with the rest of the world is quite magnificent. We’ve had our blemishes and we’ve made our errors and I’m not saying we’re perfect. But I’m not going to cop this country’s human rights name being tarnished in the context of any domestic political argument… Traditionally these matters are the prerogative of states.  Prime Minister John Howard 18 Feb 2000

A social controversy/enigma HR are not well understood/contentious Media still reluctant to canvass local stories by reference to HR stds Social commentators tend to avoid, misuse or disparage human rights General public see INHR stds as being foreign/alien and d/n understand Vic Charter

But… upon closer examination… Is there a need, opportunity,obligation to make use of HR in litigation, policy development and advocacy? [Think of the toolbox analogy]

Be prepared to play with the new kid on the block - … The Victorian Charter of Human Rights and Responsibilities [Day 2]  Actions of public authorities must be compatible with HR [s.38]  All new legislation must be accompanied by Statement of compatibility [s.28]  Interpretation of legislation compatible with HR [s.32]  SCrt declaration of inconsistent interpretation [s.36]  Add an additional ground of unlawfulness to existing remedies [s.39]

…And respond to the judicial invitation Vic Court of Appeal in medical records case  ‘the Supreme Court human rights jurisdiction is open for business’  Justice Chris Maxwell, Public presentation 23 March 2006 See Bell J of the Vic Supreme Court in Tomasevic and Ragg etc Fed court in numerous decisions Consider developments in rest of the world esp in UK with adoption of Human Rights Act (difficult to remain a legal island in a sea of globalisation)

Tip # 2 Know your obligations (on either side of the fence) UN Basic Principles on Role of Lawyers 14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.

Thus be prepared to shift/push the boundaries of the debate… Justice Breyer US SCourt in ‘A Conversation between US Supreme Court Justices’ 3 International Journal of Constitutional Law 2005, 519 at 523

Tip # 3 Know your opportunities 3 broad contexts  Service delivery [see UK experience re public service] Consider Public Service Administration Act 2004 (‘public officials should respect and promote the HR in the Charter by:  Making decisions and providing advice consistent with HR; and  Actively implementing, promoting and supporting HR  Advocacy: Negotiations [see: British Institute HR The Human Rights Act – Changing Lives – more than technical legal analysis] policy development/ legislative analysis/submissions/ lobbying - proactive)  Litigation – reactive (case work)

Opportunities for litigation…finding the hook Domestic [see Day 2] (a) Fed and Vic [pre and post Charter]  Interpretation of legislation  Development of common law [special note]  Principle of legitimate expectation  Exercise of judicial discretion **  review of administrative decisions

(b) Vic [Post charter] add…  Interpretative obligation  Declaration of inconsistent interpretation  Ground of unlawfulness under existing remedy

Opportunities for Litigation on the international stage [Day 3] Committee complaint mechanisms  HRC  CERD  CAT Special rapporteurs  Housing  Torture  Education etc  BUT before we can run we must learn to walk, so…let’s consider the basics

Tip # 4: Know your limitations HR sees problems too narrowly HR promises more than it can deliver (expectation deficit) HR is confrontational HR is individualistic (‘me, me, me approach) HR bureaucratic etc etc

Tip # 5: Know your stuff!! We need to walk before we can run… and be able to answer the following 4 Qs:  What are HR?  Where can we find them?  What do they mean?  How can we identify and implement human rights in practice?

Q. 1 What are human rights? (In the eye of the beholder) Answer is….it depends Consider: Moral/political/social Legal  Domestic: common law/legislation/Constitution  Regional  IN

But to identify the core elements… let’s go back in history… Think local:  Eg: Magna Carta, US Bill of Rights and French Declaration  Key features: Compromise and regulation of power [also contextual] Think global: Emerged post WWII [consider context again]  Key features:  respect inherent value and dignity of individual [universal entitlement]  regulate the powerful (ie: State intervention) [accountability]  Not absolute (derogation and limitation clauses)  BUT add ensure empowerment of individuals (ie: provide health, FE, housing, edu etc) [indivisibility] AND  Encourage social responsibility (ie: respect for others/non discrimination; burden sharing) [co-operation]

Q. 2 Where do we find HR? Victoria Charter of Human Rights and Responsibilities  See Part 2 ss 8-27 (only c and p rights)  See section 5 – other human rights recognised under any other law: includes - INL; common law; Constitution International Universal Declaration of Human Rights 1948 International Covenant on Civil and Political Rights 1966 International Covenant on Eco Social and Cultural Rights 1966

Other HR instruments Convention on the Elimination of All forms of Racial Discrimination 1965 Convention on the Elimination of All Forms of Discrimination Against Women 1979 Convention Against Torture 1984 Convention on the Rights of the Child 1989 Convention for the Protection of Migrant Workers and their Families 1990 Convention on the Rights of Persons with Disabilities 2006

But wait there’s more… See:  Office of the High Commissioner for Human Rights 

Key features (INL model) Universal entitlements for all individuals  Minimum standards (rock bottom of human existence) All rights interdependent and indivisible Accountability of State to secure  Obligations to respect, protect and fulfill  c and p – immediate obligation  Eco and social – progressive subject to available resources Effective participation critical to realisation Holistic response required (multisectoral and interdisciplinary)

Q. 3 How do we interpret human rights standards? Sir Anthony Mason writes that ‘”Human Rights” is an expression which is not merely evocative; it is also amorphous in the sense that it conjures up a concept with constantly moving boundaries.’ Alice Tay adds that ‘the term has often been loosely understood and carelessly grasped, leading to much wasteful confusion and misunderstanding among both promisors and promisees as well as between them’. How can we address these problems?

All roads lead to INL (but with a few detours along the way) Section 32 (1) So far as is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights (2) International law AND the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision

The devil is in the detail [see day 2] but… 2 key considerations are relevant (in addition to ordinary rules of domestic legislative interpretation): (a) international principles of interpretation; and (b) comparative case law

Let’s look at general principles first…  IN treaties must be interpreted in accordance with principles of public international law  Primary source for interpretation = Vienna Convention on the Law of Treaties 1969  Australia is a party (13 June 1974)

Vienna Convention of Law of Treaties Art 31 General Rule of Interpretation: ordinary meaning (1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose (2) Context includes: text, preamble, annexes, any agreement between all of the parties and any instrument made by one or more parties in connection with the conclusion of the treaty Note: Ordinary meaning does not necessarily require strict grammatical approach and must take account all consequences which reasonably flow from the text

VCLT art 32 supplementary means of interpretation May make recourse to supplementary means of interpretation incl preparatory work and c/t of conclusion to:  confirm meaning resulting from appl of art 31; OR  confirm meaning in light of art 31 is ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable

(i) Purposive/Teleological approach  VCLT places emphasis on text  BUT must be construed in context and in light of objects and purpose  THUS allows teleological approach: ie: adopt interpretation that seeks to realise objects and purposes Practice = (1) determine object and purpose (2) resolve ambiguity by importing ‘necessary’ substance to ensure realisation of objects and purposes

European Court of Human Rights Seek interpretation that is most appropriate in order to realise the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the parties: Wemhoff v Germany (1968) 1 EHRR 55 para 8

(ii) Effectiveness principle  Fundamental principle of interpretation because: The object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective  Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99 para 72 THUS must consider realities of situation and adopt interpretation which ensures that rights are not ‘theoretical or illusory’ but practical and effective

Example: Airey v Ireland (1979) 2 EHRR 305  right of access to courts incl right to legal aid in civil proceedings where indispensable for effective access THUS has potential to impose positive/active obligations on States to ensure effective enjoyment of civil and political rights  … the mere fact that that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no watertight division separating that sphere from the field covered by the Convention: Airey v Ireland para 26

(iii) Living instruments  HR treaties require a dynamic interpretation in recognition of the fact that the standards by which human rights are assessed are not static Euro Court of Human Rights  ….a living instruments which … must be interpreted in the light of present day conditions Tyrer v United Kingdom (1978) 2 EHRR 1 para 16  Note: limits impact of travaux preparatoires because of need to adopt dynamic interpretation

Interpretation: Case study 1 Art 1 ICCPR Each state undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant… Does this mean States have extraterritorial obligations?

Interpretation: Case study 2 Article 6 ICCPR Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life What does this mean?

See eg: Human Rights Committee General Comment No 6 The Committee has noted that the right to life has been too often narrowly interpreted. The expression inherent right to life cannot be properly be understood in a restrictive manner and the protection of the right requires that States adopt positive measures. [respect, protect, fulfill]

Interpretation: Case study 3 Article 24 Vic Charter Person charged with a criminal offence or a party to a civil proceeding has the right … to a fair and public hearing. ???

And how do we find the comparative case law? See handout: A Six Step Approach to Effective HR Research Recommend as a minimum subscription to:  Human rights law resource Centre e bulletin  Doughty Street Chambers Human Rights Bulletin  Interights Commonwealth HR case law database  European Court of Human Rights Information Notes