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.

 

System which entrenches disadvantage is poorly designed

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If we were asked to design a legal system from scratch, it’s unlikely that we’d craft it to increase reoffending. In the way that our justice system responds to certain members of the community, however, that’s exactly what we’ve done. From cops, through courts to Corrections, our legal processes are shaped in ways that entrench disadvantage and make it almost impossible for particular people to establish a life beyond the cycle of disadvantage and crime.

No group could be more vulnerable to this design flaw than people with Acquired Brain Injury. As Brain Injury Awareness week rightly highlights, ABI is often known as the ‘hidden disability’, acquired at some point in a person’s life after birth – either through traumatic injury, such as a car collision or violent assault – including family violence, or through chronic problems such as substance abuse.

Manifesting in a range of ways, ABI is one of a range of factors which make people more likely to come into contact with the criminal justice system and less able to comply with its directions once they do. In fact, research commissioned by Corrections several years ago revealed that 44% of men and 33% of women in Victoria’s prisons have an ABI – an extraordinary figure which should tell us that something is terribly wrong under the metaphorical bonnet of the justice system.

Few among the general population, after all, have a hope of understanding the complex processes and language of a courtroom. Few would not be intimidated by an interaction with police or frightened when flung into a cell. When the experience is compounded by cognitive impairment, by potential mental illness, or by the prior experience of victimisation to which we know that people with ABI are vulnerable, then this experience becomes even more alienating.

Yet many police do not ask or even understand what an ABI is; most courts lack flexible or appropriate sentencing options; and our prisons systems – confirmed by last year’s Ombudsman’s report as effectively operating in a disability environment – are ill equipped to respond effectively. As a result, people with ABI, like people with other forms of disability, are cycled in and out of the prison system – unlikely to comply with orders, unable to understand the process, released to homelessness and inadequate support which means they turn to offending to get by.

Governments are recognising that this makes no fiscal or social policy sense but they struggle to grapple with how to begin to undo this mess. This is why our Enabling Justice project – a partnership between the Centre for Innovative Justice and Jesuit Social Services – is using the voices of people who have an ABI and who have experienced the criminal justice system, to design better responses. Their stories – and their participation in a Justice Users Group (JUG), which puts their voices front and centre – help to identify tangible ways to make each interaction more constructive and effective.  A podcast with JUG members Kerry and John can be found here.

Many of these suggestions are specific to people with ABI. As Brain Injury Awareness week also highlights, however, only a small proportion of ABI is identified. This means that we have to design the entire system differently – assuming that, if someone has come into contact with the criminal justice system, they are potentially already vulnerable.

Yes, there are a small number of hardened offenders in our prison for whom there seems no other option but incarceration. The majority of those in our prisons, however, are likely to have come from one of only a few Victorian postcodes and a background of intergenerational unemployment. They are unlikely to have completed their education. They are likely to have a substance abuse problem or mental illness. They are likely to be homeless. If they are a woman they are likely to have experienced family violence or childhood sexual assault. They may have a gambling addiction and be coerced into crime to pay off their debts. What’s more, by coming into contact with the criminal justice system, their situation is likely to have been made significantly worse.

Given that we know this, we have to design a system that takes this knowledge into account. Doing so is not about making excuses or letting people off the hook. It is about recognising that the community is losing money from a system which, in far too many cases, cements the commission of further crime, rather than prevents it.

It is also about recognising that people with ABI need justice to function as a positive, rather than a negative, intervention in their lives – treating them with the dignity and offering them the hope that the rest of the community rightly expects.

Rob Hulls                                                                Julie Edwards
Director                                                                  CEO
Centre for Innovative Justice                           Jesuit Social Services