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4 Additional issues emerging from the consultation

Additional human rights issues were raised during the consultation process that were outside the original scope of the consultation. However, given these issues were repeatedly raised across the country, it is important that they are included and addressed as part of this report.

Right to freedom from arbitrary detention

The Rights & Responsibilities 2014 discussion paper did not mention the right to freedom from arbitrary detention. Even so, concerns about mandatory sentencing laws and the denial of liberty for people with mental health issues were raised in meetings across the country.[64]

Mandatory sentencing laws

In almost all public meetings, the social and economic consequences of increasing rates of incarceration were discussed. These discussions highlighted:

  • the effect of mandatory sentencing laws, which prescribe mandatory minimum sentences for criminal offences, on incarceration rates
  • the long-term detrimental impact on people and their families from incarceration, especially more vulnerable groups such as people with a disability, children, Aboriginal and Torres Strait Islander peoples, and people from a low socio-economic background.

Given the prevalence of these concerns, the Commissioner met with legal service organisations in most states/territories and also visited correctional centres in Derby (WA), and Townsville and Brisbane (Queensland).

Mandatory sentencing occurs in all Australian jurisdictions (including federal) except Tasmania and the ACT.[65] As noted by the Law Council of Australia:

... [M]andatory sentencing laws are arbitrary and limit an individual’s right to a fair trial by preventing judges from imposing an appropriate penalty based on the unique circumstance of each offence and offender... Such regimes are costly and there is a lack of evidence as to their effectiveness as a deterrent or their ability to reduce crime.[66]

The consequences of these laws are deeply concerning. Meetings with the Central Australian Aboriginal Legal Aid Service, North Australian Aboriginal Justice Agency and Aboriginal and Torres Strait Islander Legal Service highlighted the dire effects these laws are having on Aboriginal and Torres Strait Islander communities. These outcomes have been reported by my colleague Mick Gooda, the Aboriginal and Torres Strait Islander Social Justice Commissioner, in his annual statutory reports to federal Parliament.[67]

The Commissioner will continue to support the development of policies that seek to lower incarceration rates and provide alternatives to detention.

Denial of liberty for people with mental health issues

Mental health and its implications for so many members of our community was a recurring theme throughout the consultation. In a number of cases, reports were made about individuals with mental health issues being denied their liberty through long-term seclusion and restraint. While these are highly complex situations for the individuals, their families and the support services, these outcomes potentially breach an individual’s right to freedom from arbitrary detention.

As part of his future work, the Human Rights Commissioner will seek to work with relevant organisations to examine the denial of liberty for people with mental health issues.

Euthanasia

At several public meetings and in submissions, issues were discussed that reflect our right to choose how and when we die. For example:

In the instance where death is the conclusion of a deliberate, carefully reasoned decision, either on the part of the person concerned or on the part of a court of justice, that decision should be implemented with a maximum of humanity and as least pain, stress and suffering as modern science can allow. The best possible conditions of euthanasia ... should be provided in all instances, irrespective of whether the decision to terminate life is taken by the person himself or by a court of justice.

...

Euthanasia ... has to be the personal decision of the individual exercising his free will without, or in spite of, any outside influence... Rodney Crisp submission

While these issues were raised during the consultation on human rights, they also have significant public health and criminal law implications.

Charter of human rights

Human rights are protected in Australia through a myriad of federal, state and territory laws, policies and practice, as well as through the common law (that is, decisions of the courts) and culture.[68] Australia has not fully implemented all of its commitments in international human rights treaties, such as through a constitutional or statutory charter of human rights at the national level.[69]

The potential to realise a federal charter of human rights (or Human Rights Act as it is commonly referred to) in Australia was discussed at most public meetings. Arguments were proposed, for and against, a charter of rights.

Extensive consultation has recently occurred at both federal and state levels in relation to implementing human rights charters. This includes the comprehensive National Human Rights Consultation process that occurred during 2008-10 and supported the realisation of a human rights charter.[70]

One of the claimed benefits of a charter of human rights is its indirect capacity to educate bureaucracies about human rights. As noted by the Law Institute of Victoria:

The Victorian Charter of Human Rights and Responsibilities 2006 ... has ... generated a greater awareness of human rights within public bodies – for example, the rights protected by the ... Charter are incorporated in key policies through guidelines and initiatives, and in business plans for many public authorities. Law Institute of Victoria submission

At the federal level, the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires all new legislative proposals to be accompanied by a Statement of Compatibility with Human Rights which is considered by the Joint Parliamentary Committee on Human Rights. This places responsibility on our elected representatives to consider the impact of new laws on human rights and fundamental freedoms, and to make judgements about appropriately balancing competing human rights issues. The Committee process enjoys bi-partisan support.

At this stage, the role of a charter of rights is contested, particularly given these processes already in place, and will not be pursued by the Human Rights Commissioner. An important claimed benefit of a charter of rights is its role in public education and educating bureaucracies. In response, the Commissioner will be focusing on human rights education.

Human rights education

Human rights education is particularly important. 2015 provides a unique opportunity to address human rights education with the 800th anniversary of the Magna Carta (or the Great Charter) on 15 June. The Magna Carta:

  • established equality before the law
  • protected religious freedom
  • provided some protection to the rights of women and property
  • protected people from arbitrary detention
  • established the rule of law.[71]

In the coming months, the Commission will be developing resources for Australian schools that explain the historical role of the Magna Carta on our contemporary understanding of human rights.

Exercising responsibilities and civil society action to advance human rights

Participants in the consultation also stressed the importance of individuals exercising responsibilities with rights, and the role of civil society action to advance human rights. This approach focuses on the importance of cultural values and norms in protecting people’s human rights.

A consistent theme across consultations was the extent to which an individual can exercise their human rights before they encroach on the rights of others.

The interrelationship between rights and responsibilities is articulated in the following quotes:

Human rights come coupled with corresponding responsibilities in the sense that the ability to exercise one’s human rights is balanced against everyone else’s ability to exercise their rights.

...

Responsibilities are, of course, expressly incorporated in a number of the articulated rights; the right to freedom of expression, for example, incorporated “special duties and responsibilities”. However, responsibilities should not be legally enforceable in themselves, and recognition of human rights should not be dependent on the performance of certain responsibilities. Human rights vest in the individual regardless of how they act. Public Interest Advocacy Centre submission

The issue is that with rights comes responsibilities and Australia does not do enough to couple the two. Online survey response

We should also as a community discuss placing our responsibilities squarely alongside our rights, so that all in our community have equal access to their rights. Mary Voice submission

Despite the commonly-held view that rights need to be coupled with responsibilities, there was little evidence or information provided throughout the consultations about how this could be best achieved. Some communities presented ‘strategies’ and ‘plans’ that evidenced their local efforts to promote a culture of respect and mindfulness toward vulnerable sections of the community. There was clearly a strong wish and will to promote a culture of responsibility from those that engaged with the consultation, but limited understanding about how it can be achieved. This, in part, reflects the community-up approach that is adopted and needed so it can take account of local issues and responses, but also because efforts to promote responsibility are rooted in informally taught cultures and values.

Promoting civil society action to address human rights and responsibilities will underpin the future work of the Human Rights Commissioner.

[64] While not raised as a systemic issue during the Rights & Responsibilities 2014 consultation, the Commission has previously undertaken work in the area of access to justice for people with a mental health issues. For example, see G Innes, Disability Discrimination Commissioner, Equality Before The Law: towards disability justice strategies, Australian Human Rights Commission (2014). At http://www.humanrights.gov.au/our-work/disability-rights/publications/e… (viewed 12 March 2015).
[65] Law Council of Australia, Policy Discussion Paper on Mandatory Sentencing (May 2014), pp 50-59. At http://www.lawcouncil.asn.au/lawcouncil/index.php/library/policies-and-… (viewed 17 February 2015).
[66] Law Council of Australia, Policy Discussion Paper on Mandatory Sentencing (May 2014), p 4. At http://www.lawcouncil.asn.au/lawcouncil/index.php/library/policies-and-… (viewed 17 February 2015).
[67] M Gooda, Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice and Native Title Report 2014, Australian Human Rights Commission (2014). At http://www.humanrights.gov.au/publications/social-justice-and-native-title-report-2014 (viewed 17 February 2015).
[68] For a broader discussion, see G Williams and D Hume, Human Rights Under the Australian Constitution (2nd edition), Oxford University Press (2013).
[69] While there is no national statutory charter of rights, the Australian Capital Territory has enacted the Human Rights Act 2004 (ACT) and Victoria has enacted the Charter of Human Rights and Responsibilities Act 2006 (Vic).
[70] Attorney General’s Department, National Human Rights Consultation Report. At http://www.ag.gov.au/RightsAndProtections/HumanRights/TreatyBodyReporti… (viewed 15 February 2015).
[71] The rule of law was established in clause 29 of the Magna Carta (1297 version).