Requiring entities performing a public function to act consistently with human rights

A Human Right Act would require public entities, such as state government departments, local councils, state schools, the police and all organisations performing a public function in WA to act compatibly with our human rights and to take human rights seriously when making decisions about us. . This would benefit everyone in Western Australia because it will place human rights at the centre of our interactions  with public services and foster an improved culture of human rights across our entire public sector.

In the ACT, Victoria and Queensland, human rights have become part of the everyday business of government agencies. Human rights protections have been incorporated into key policies and  decision-making guidelines. This  is delivering  tangible benefits for the people living in these states, as illustrated by the following case studies.

Case study: Human rights training for public officers

After the Victorian Charter was passed, the Victorian Equal Opportunity and Human Rights Commission developed an education project to train government agencies, businesses and the community on their obligations to comply with human rights. In 2017, 119 staff from Victoria’s Registry of Birth, Deaths and Marriages undertook human rights training. Following this training, the Registry’s leadership team raised awareness of human rights by explicitly discussing human rights in their daily interactions and decision-making with the public, stakeholders and Registry staff. The Registry also developed a tailored presentation with practical examples and interactive exercises to assist Registry staff in identifying when and how to act compatibility with human rights in their daily work.

At the East Gippsland Shire Council in Victoria, councillors, executive leaders, managers, coordinators and team leaders from all business units undertook the targeted human rights training to understand their obligations under the Victorian Charter. With the assistance of the Victorian Equal Opportunity and Human Rights Commission, the Council developed a best practice human rights approach to customer service that was rolled out across the Council to over 100 local government services. Senior leaders in the Shire Council also committed to integrating human rights into the organisational vision, strategic planning, and policies. For example, the Council developed a complaints management policy and procedure to ensure that when a member of the public submits a complaint, it is managed fairly and objectively in a manner that upholds the human rights of that individual.

Case study: Ensuring contractors and third-party service providers act consistently with human rights law

The Victorian Charter requires that whenever a public authority uses contractors or other third parties to perform public functions on their behalf, the public authority must take steps to ensure the contractors or third parties operate in a manner that is consistent with human rights. Accordingly, the Department of Justice’s Health Unit inserted a requirement into the model Health Service agreements that external service providers must comply with the human rights obligations under the Victorian Charter. 

Similarly, the Victoria Police have taken steps to ensure the external contractor responsible for the operation of the Melbourne Custody Centre must refrain from acting in a manner that is incompatible with human rights under the Victorian Charter. The contractor’s Operating Procedures used by staff at the Melbourne Custody Centre are guided by international standards and include a requirement to ensure detainees are able to have private contact with their families and legal representatives and have the right to have decisions made about the duration and legality of their detention by a judicial (or equivalent) authority. The contract between the Victoria Police and this external contractor also mandates Key Performance Indicators (KPIs) relating directly and indirectly to human rights compliance. These KPIs address legislative requirements related to standards of safety, welfare of prisoners, medical services and visitation rights.

Case study: Human Rights Act provides policy direction for staff in government departments

In Victoria, the Department of Education and Early Childhood Development provided schools with a guide for shaping their policies in line with human rights principles, including policies regarding the dress and appearance of students. The guide expressly states that under the Victorian Charter, schools must balance the rights of individual students against the best interests of the school community as a whole, meaning that schools must accommodate an individual’s rights within their broader policy. Teachers are also being supported in educating young persons of their legal rights and responsibilities, aided by resources developed by Victoria Legal Aid and YouthLaw.

The Victorian Office of Housing sought to ensure the practical application of the human rights principals set out in the Victorian Charter by developing a new briefing note, which requires staff to take a rights-based approach to making recommendations with regard to VCAT proceedings. Specifically, staff must consider the relevant human rights impacts when determining the reasonableness of imposing limitations or restrictions upon individuals, and in turn whether a less restrictive alternative is more appropriate. Additionally, the Office of Housing has increased the transparency of its appeals process.

The ACT government has published guidelines to instruct government departments on how to consider human rights in the development of legislation and policy. The guidelines alert public officials to the specific human rights that might be engaged by different types of policy and law. For example, the guide instructs public officials to consider the cultural rights protected by section 27 of the Human Rights Act 2004 (ACT) when they are developing policies that have the potential to limit the ability of Indigenous or other ethnic groups to continue to take part in distinct cultural practices.

Case study: The right to privacy and dignity secured by Victoria’s Department of Human Services

Victoria’s Department of Human Services (DHS) incorporated the Victorian Charter into their staff training framework. This has included providing staff with practical ways to incorporate a rights-based approach into their daily work and training staff to support third party organisations with implementing human rights into their operations.

This has benefited individuals who interact with DHS or with DHS-funded organisations. For example, during a routine visit to a DHS-funded residential service a DHS officer observed that a client was not being afforded privacy when showering. The DHS officer provided information to the residential service carers on the potential breaches of the Victorian Charter which led to a review of the client’s living environment and the necessary alterations to guarantee the privacy and dignity of the client.