A Federal Charter of Human Rights: Would it make any difference?

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Left to right Helen Metzger, Veronica Snip, Brigette Rose, Frank Aloe, Luke Fowler.

In 2016 the Centre for Innovative Justice was approached by the Human Rights Commission to conduct a project exploring and evaluating the impact that a federal Charter of Human Rights would have had on the outcomes of significant Australian cases and laws.  Below the five JD students who undertook this huge task reflect on their time working on this fascinating project:

Our task

We considered the potential impacts of a federally legislated Human Rights Charter by assessing how such a Charter would have affected the determination and outcomes of significant Australian cases and laws.

What it involved

Our initial brief was to take the Victorian Charter (Charter Of Human Rights and Responsibilities Act 2006) as the basis for designing a ‘model’ Charter. Ultimately, influenced by other human rights instruments (for example, the ACT Charter and the UK Human Rights Act) we expanded the Charter to include federally relevant provisions, the right to commence legal proceedings against public authorities on the basis of the Charter alone (which differs from the Victorian Charter in which another cause of action is also required to attach the Charter arguments to), and to seek remedies. Encouraged by our mentors, we decided to draft our model Charter, in order to test it fully. You can view our model Charter at Appendix 1 of our report.

Once the Charter was drafted, we applied the tests within it to the decisions and legislation we had been given to consider, by placing ourselves in the shoes of the Parliament, public authorities (who make decisions in accordance with legislation) and the Courts.

For example, when standing in the shoes of Parliament, we had to apply the following test to the legislation under consideration:

  • the nature of the right being limited;
  • the importance and purpose of the limitation to that right;
  • the nature and extent of the limitation;
  • the relationship between the limitation and its purpose; and
  • any less restrictive means reasonably available to achieve the purpose of the limitations.

Our mentors, David Manne and Emily Howie, offered insight about how the laws might be applied by a court, urging us to consider international jurisprudence on the scope of particular rights and human rights principles. So while this exercise was an imaginative one, it was grounded in legal theory and precedent, albeit from outside domestic law.

Benefits of participating

Frank Aloe: I don’t think that I can rate the benefits of this experience highly enough. It provided us the unique opportunity to contribute to a national conversation, and have that contribution be recognised and supported by leaders in the field. All of which seemed well beyond our reach as law students at the beginning of this project.

The project has re-shaped my understanding of my ability to create tangible outcomes through the law. I think that these sorts of projects are genuinely transformative and I recommend anyone with the chance to get involved in a similar opportunity to do so.

Helen Metzger:  In summary, the project was an exercise in: drafting legislation, networking, application of law, human rights, political responsiveness to the law, judicial reasoning, and an extreme process of teamwork. To work with selected students is the best group work one can hope for. Our ability to recognise each other’s strengths and encourage them while working together was great. I came away from the project with absolutely hands-on experience – working with industry professionals, guided by extraordinary mentors, legal skills sharpened and inspired. As with my other placement with the CIJ, the project has changed the direction of my JD and aspirations. I can’t recommend the placements through CIJ highly enough. To be able to properly experience the legal sector before one is graduated is a gift and an opportunity.

Effectively, the Charter asks for transparency, justification, and evidence-based laws. What struck me in the project was how simple that is, and how resistant politics and the public can be to that. For some people, it seems ‘human rights’ are a dirty word – deeply ‘unpopular’ as a concept, despite them being what most of us would expect makes the basis for a valuable and happy life.

Luke Fowler: I was quite surprised at how the introduction of the Charter would not only improve human rights protections for Australians, but also how it would improve transparency and accountability in the law making process. This, in turn would allow the Australian public a clearer understanding of the laws that are being enacted in their name.

This project has shown me that the introduction of a Charter would lead to clearer and less ambiguous laws, which in turn would make it easier for the Courts and public authorities to interpret and administer the law, leading to fewer disputes and fewer lengthy and expensive court cases.

Brigette Rose:   Launching the Charter was fantastic. Professor Gillian Triggs, President of the Human Rights Commission, explained how vital a Charter is to Australia. She had everyone at the launch imagine Australia with explicit human rights protections, rather than an Australia that has to be informed by another country, PNG, that Australia’s asylum seeker detention policies are illegal and breach the right to liberty.

The launch of our federal Charter offered an opportunity to celebrate the wins of the current Victorian Charter, and to emphasise the difference that could be made to everyday Australians if a federal Charter was in place. It was a great day to both congratulate ourselves on the report that we produced, and to strengthen our resolve about why this and other pieces of work like it are so important.

Veronica Snip:  Participating in this project was a really worthwhile experience, way beyond the research and academic skills I gained. This was group work on steroids, and taught me to communicate, debate, assert myself and acquiesce when need be. Not only have we been able to make our mark on the human rights landscape in this country, but we were guided there by inspiring and brilliant leaders in the field. This report was a gargantuan task that we somehow managed to complete, and now makes me sound pretty impressive when I casually slip it into everyday conversation with friends/relatives/strangers. I loved going to the CIJ every week and debating human rights with 4 fellow law nerds and have taken much more out of this than I put in.

The report was launched by Emeritus Professor Gillian Triggs on Friday 12 May.  You can listen to a podcast of the launch here.

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Left to right back:  Anna Howard, Helen Metzger, Brigette Rose, Luke Fowler, Veronica Snip, Frank Aloe, Gillian Triggs, Rob Hulls.  Front:  David Manne, Hugh de Kretser.

 

A call for innovative responses to youth justice

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By Stan Winford, Principal Coordinator, Legal Programs

The history of youth justice in Australia over the last 200 years or so is characterised by the failure of punitive detention to impact on recidivism or to address at an individual or systemic level the underlying issues which have propelled many young people into the justice system and into custody. Across Australia, youth detention facilities house a disproportionate number of detainees with mental health issues and cognitive impairments, limited educational attainment, and histories of abuse, trauma and victimisation. Detention facilities have effectively become warehouses for vulnerable and disadvantaged young people, failing to effectively support education and rehabilitation, instead engendering criminogenic relationships and behaviour.

Aboriginal people have been more exposed to this failure than any other group, and are devastatingly over-represented in the youth justice system, particularly in the Northern Territory. Not enough has been done by successive governments to implement the recommendations of the Royal Commission into Aboriginal Deaths in Custody. Aboriginal people represent approximately 30% of the population of the Northern Territory, but 96% of children and young people in detention in the Northern Territory are Aboriginal.

Jurisprudence, criminology and behavioural science all tell us that children and young people have a greater capacity for rehabilitation than adults. Yet the evidence shows that detention facilities provide an education in crime, and children who have been detained are more likely to re-offend in future. Detention is also the most costly form of responding to youth offending. Last year, governments across Australia spent $698 million on youth justice, and most of it (62.8 per cent, or $438 million) was spent on detention rather than community based responses. Detaining children and young people in closed environments is inherently unsafe. In the last five years, there have been investigations into youth detention facilities in almost every Australian state and territory. Violence and the use of excessive force appear to be endemic.

The documented backgrounds of children and young people in detention include very high rates of family violence, parental drug and alcohol abuse and contact with child protection systems. Rather than addressing this deep-seated trauma, however, youth detention exacerbates it by imposing additional trauma in the form of an uncompromising and authoritarian environment where violence – from other detainees and from authorities – is a constant threat.

If these costly facilities are not reducing re-offending and are harming young people, the question must be asked: why do we persist with this approach? Can we respond to trauma with trauma informed practices that address the underlying issues rather than their symptoms? Are there innovative alternatives?

It may be that the continued existence of youth detention centres themselves – with their consumption of a disproportionate share of juvenile justice budgets, and their tendency to present a deceptively appealing ‘out of sight, out of mind’ solution to a complex problem – create the greatest barriers to the development and adoption of alternative responses.

Despite this, alternative responses do exist, and demonstrate a path forward for youth justice. In Victoria, for example, Parkville College incorporates culturally appropriate and trauma informed practices, and establishes safeguards for young people in detention. Parkville College is a school within a detention facility in Melbourne.  Parkville College employs a therapeutic and trauma informed approach to learning and teaching. It aims to create lasting change for incarcerated students by establishing positive relationships and addressing the impact of trauma. It offers cultural connections to Koorie students and incorporates effective pathways for young people to maintain their education without interruption while transitioning out of detention.

Critically, it also helps create a safe environment for young people, and treats education as a right not a privilege. In many youth justice facilities, detainees frequently miss out on education because of the unavailability of custodial staff to supervise them, or because the ‘good order and security’ of the facility is prioritised above all else.  Normally, when education meets custody, custody wins. By contrast, if a young person is not available to participate in a class at Parkville College, education staff – having an obligation to teach them – can ask where they are, and for custodial staff to make them available.  Even if there is some valid reason for the absence of the student, the ability for teaching staff to ask the question provides an important measure of accountability. The learning environment established by the presence of teaching staff creates a fundamentally different culture, while the physical presence of teaching staff alongside custodial staff minimises the risk of inappropriate treatment.

Nationally and internationally, there are many other examples of innovative approaches to youth justice like Parkville College. Other jurisdictions are successfully harnessing the opportunities offered by restorative justice, therapeutic justice, justice reinvestment, culturally informed justice approaches, and solution-focussed courts to create more positive outcomes for young people.  Many of these responses are based on ‘user-centred’ approaches to designing solutions to entrenched and systemic problems. They recognise that to have the best chance of identifying opportunities for early intervention and diversion, the trajectory of people’s journeys through justice systems and processes must be understood. These are responses that focus on reducing trauma, and are informed by the people who have the most at stake in seeing them adopted. These responses focus on the power of education to transform young lives, disrupting the ‘trauma to prison pipeline’ and putting young people back on track. Innovative responses like these represent the best opportunity we have to change our approach for the better, so that another generation of young people are not lost to a system that fails to responds to their needs and the needs of the community.

The CIJ has formally provided the Royal Commission into the Protection and Detention of Children in the Northern Territory with a submission on innovative responses to youth justice.  Keep an eye out for the full submission on the Royal Commission website here.