HOW A HUMAN RIGHTS ACT COULD ASSIST WA INDIVIDUALS

Currently, the legal protection of human rights in Western Australia relies on a patchwork of statutory, common law and constitutional protections at the State and Federal levels. This patchwork offers limited protections that do not comprehensively cover the full gamut of human rights recognised under international law. The following case studies from Western Australia illustrates the inadequacy of the status quo. In the absence of a Human Rights Act, individuals cannot access enforceable remedies when their rights have been breached and rights and freedoms are too easily ignored or dismissed. Introducing our own Human Rights Act in Western Australia would provide significant benefits for individuals and groups and would foster the growth of a greater human rights culture in our community.

Case study: Treatment of juvenile offenders held in adult prison

Human rights engaged:

• Rights of persons deprived of liberty to be treated humanely
• Rights of juvenile offenders to be segregated from adults child and be accorded treatment appropriate to their age and legal status

In January 2013, 140 teenagers were transferred from to Hakea Prison following a riot at Banksia Hill Detention Centre. Shortly after their arrival at Hakea Prison, orders were made pursuant to the Young Offenders Act 1994 (WA) that declared particular units at Hakea Prison to be a ‘detention centre’. Of the 140 teenagers, 54 were being held on remand. For several weeks after their arrival at Hakea Prison, the teenagers were subjected to lockdowns in their cells for 23 hours per day, the extensive use of physical restraints and strip searches. Arrangements at Hakea Prison for education, recreation and remedial programs were also described as being ‘less than optimal’ and staff shortages led to visits being cancelled.

The decisions to declare the units at Hakea Prison to be a ‘detention centre’ were challenged on the grounds that the maximum-security facility was unsuitable for the detention of young persons and that the decisions were not made according to the principles and objectives of the Young Offenders Act 1994 (WA) which includes, inter alia, protecting the legal rights of young persons involved in the criminal justice system. The Australian Human Rights Commission as intervener also made submissions about the extent to which the government had breached Australia’s international human rights treaty obligations. The court rejected these arguments, finding that international human rights law could only play a very limited role in such cases as it does not form part of the law in WA, and in this case had no role to play at all. The Supreme Court of Western Australia rejected the application and held that the decisions were lawful.

But if WA had a Human Rights Act…

In the absence of a Human Rights Act in WA, the human rights of these WA teenagers were not directly actionable. However, this case has substantial similarities to a Victorian case where the decisions to detain teenagers in an adult prison were found to have breached the Victorian Charter of Human Rights. If WA had a Human Rights Act, then decisions by the Minister for Corrective Services would have to be made in accordance with human rights and failure to do so would render the decision unlawful. This would include obligations to consider the rights of the child to protection of their best interests and the right of persons deprived of liberty of to be treated with humanity.

Case study: Rights of First Nations children in care

Human rights engaged:

• Rights to maintain culture
• Rights of the child to learn and use the language and customs of their families

Like many children in state care, a 16-year-old First Nations girl says she has been in the care of the WA Department of Communities for “as long as she can remember” without knowing how she came to be in care. She lives in a residential home separated from her siblings. She says that many Aboriginal children in care are disconnected from their Indigenous heritage, “we need to know who we are, our family history, our culture”. However, some children in care may not even know they are Indigenous, if the Department has failed to tell them.

But if WA had a Human Rights Act…

Although there are some protections for human rights under existing legislation, a Human Rights Act would afford better protections of cultural and familial rights. This could allow direct arguments to be made to protect a child’s right to family and culture and require the Department of Communities to act in accordance with those rights.

A Human Rights Act could also protect the right of self-determination, to ensure First Nations communities are able to make decisions and retain control over processes that affect their lives and their children. This would require the adoption of culturally sensitive protocols and policies across all government authorities, and could result in better outcomes for First Nations children.

Case study: Mother’s eviction to homelessnes  

Human rights engaged:

• Rights to protection of the child and the family
• Recognition and equality before the law

A young woman with a small child was evicted from public housing into homelessness. The eviction occurred after the Housing Authority received complaints from neighbours about the disruptive behaviour of the woman’s ex-partner. The woman had been granted a violence restraining order against her ex-partner, but that did not stop him from coming around. After he had tried to break into her house one night, she ran next door for help and the neighbour complained that she had knocked on her door late at night. This was the final complaint that led to eviction under Western Australia’s hard line ‘three strikes policy’. Once the woman had been evicted and had nowhere else to go her children were taken into care.

But if WA had a Human Rights Act…

A Human Rights Act could protect everybody’s right to adequate housing, which is an important foundational right, because it is difficult to have the right to family and privacy, or the highest attainable standard of health without it. There is currently insufficient public housing available in WA, resulting in long waiting lists and homelessness. A Human Rights Act could encourage the WA Government address this housing crisis.

If we had a Human Rights Act the decision by the Housing Authority to evict this family into homeless could also be directly challenged. The Housing Authority would be required to consider the family’s human rights and failure to do so would make the decision to evict unlawful. If the Housing Authority would not change their decision, it could also be challenged in court.

Case study: Right to medical treatment for children in foster care

Human rights engaged:

• Right to the highest attainable standard of health
• Rights of the child

In 2019, a foster mother took the WA Department of Communities to court to seek guardianship of her foster child, so she could ensure he received necessary medical care and assessment. The foster mother had spent 3 years pleading for case managers to have the child assessed and treated for Foetal Alcohol Spectrum Disorder and a post-traumatic stress disorder but the requests were repeatedly denied. The child’s school had agreed the child needed an education assistant but was unable to apply for funding without a formal diagnosis. Although the Department of Communities fought the mother’s application, the Court found in her favour and granted her guardianship.

But if WA had a Human Rights Act…

A Human Rights Act would compel the Department of Communities to consider the rights of children when making decisions about children in care. Furthermore, it would provide a human rights framework to guide and assist case managers in making difficult decisions about the allocation of scarce resources.

If WA had a Human Rights Act, it is highly likely the foster mother could have successfully challenged the Department’s decision without needing to go to court, and the child would have received the necessary care, treatment and support years earlier.

Case study: Living without fear  

Human rights engaged:

• Right to adequate housing
• Right to privacy

A 45-year-old man with an intellectual disability was living independently in a Department of Housing duplex in Mandurah. His neighbours on the other side of the duplex often “borrowed” money him which they never repaid and regularly hid drugs and stolen goods in the man’s home, threatening him if he tried to say no. The effect on the man’s mental health and independence was severe. His family and local advocates tried every avenue available to have the Housing Authority move the man to alternative housing, to no avail. After 4 years the family were left with no choice but to move the man into supported accommodation.

But if WA had a Human Rights Act…

A Human Rights Act would protect the right to adequate housing and the right to privacy. If WA had an Act in place, the man’s family and advocates could have directly challenged the decisions by the Housing Authority and proceeded with a court action if adequate housing was not provided. A Human Rights Act could also compel the WA Government to address the current housing crisis in WA.

Case study:  Humane treatment in aged care facilities 

Just 2 days before Christmas 2020, a Perth woman received a call from her father’s nursing home informing her he had been admitted to hospital for sunburn. She later discovered a staff member had let her father onto the roof top garden on a 40-degree day without supervision or water causing dehydration and severe burns. None of the staff had kept track of him and discovered him unconscious 2 hours later. The 86-year-old man had suffered a fall just a month before that caused black eyes and a bleed on the brain affecting his cognition. He died just under 4 weeks later.

But if WA had a Human Rights Act…

A Human Rights Act could require that those age care providers funded by government or providing public care would have to protect the Human Rights of their residents.  This could provide guidance and improve care as these considerations would have to be part of all processes and decision making. If we had a Human Rights Act, nursing home residents might be able to use it to advocate for better protection of their rights.

Case study: Access to education

Human rights engaged:

• Right to education
• Rights of the child

A WA Productivity Commission Report on Government Services found that in 2017-2018, 28 Aboriginal children and four non-Indigenous children did not receive an education while at Banksia Hill Detention Centre. This figure equates to approximately one in every four young person in custody while all other states achieved 100% education attendance rates. In responding to the Productivity Commission Report, the WA Department of Justice blamed a ‘period of instability’ that had led to a change in management at the Banksia Hill Detention Centre.

But if WA had a Human Rights Act…

A Human Rights Act would protect the right to access education and the rights of children. An Act would require the Department of Justice to act consistently with these human rights when making decisions about management and resources. It would also allow for the families and advocates of children held in detention to directly challenge any decisions that deprived them of an education.

Case study: Mandatory sentencing of children in WA

Human rights engaged:

• Rights to freedom from arbitrary detention
• Right to protection in the best interests of the child

Western Australia is the only state in Australia which still allows for mandatory sentencing for children in respect of three strike burglary offences. This practice has been broadly criticised by human rights advocates as it does not allow courts to consider a child’s age, the facts of the current offence, the individual circumstances of the person, or the application of judicial discretion. The President of the Children’s Court recently observed that the ‘counting of strikes’ for young people is unnecessarily complex and has vexed counsel and judicial officers of the Children’s Court for many years.’ ^[25]Domestic and human rights bodies have found WA’s mandatory sentencing regime breaches a number of principles in the International Covenant on Civil and Political Rights, including the prohibition on arbitrary detention, and a number of principles in the Convention on the Rights of the Child, including the principles of proportionate sentencing and the use of detention as a last resort. However, none of those rights are comprehensively protected in domestic human rights legislation.

But if WA had a Human Rights Act…

If WA had a Human Rights Act, it is very likely the mandatory sentencing regime in the WA Criminal Code would be found to be inconsistent with human rights, such as the right to freedom from arbitrary detention and the right to protection in the best interests of the child. These provisions would be subject to potential legislative reform or challenge in court.

A Human Rights Act would also require a parliamentary committee to check new legislation is compatible with the Human Rights Act and would require government agencies to ensure they are acting in the best interests of the child when dealing with the children in the interactions with the justice system.