Empowering individuals to seek justice

A Human Rights Act would empower individuals to seek a legal remedy or submit a formal complaint for breaches of human rights by public authorities. The human rights legislation in other jurisdictions have benefitted individuals by making it unlawful for public authorities to:

• act in a way that is incompatible with a human right; or
• fail to give proper consideration to a relevant human right in making a decision.

As we have already seen, human rights legislation has resulted in more human rights compliant decision making by public authorities. Individuals have also been able to use human rights in advocating with public agencies. The human rights legislation the ACT, Victoria and Queensland also empowers individuals to commence legal proceedings for breach of their human rights alongside other legal actions. The ACT Human Rights Act has also established a standalone, direct cause of action for breach of human rights. In Queensland, complaints can also be made to the State’s Human Rights Commissioner and managed through a conciliation process.

Case studies from these jurisdictions illustrate the ways in which a Human Rights Act can provide avenues for individuals to seek redress when their rights are violated or neglected by public authorities. In some instances, individuals or their advocates have had their issues resolved by asserting their rights directly to the relevant public authority. In other instances, the availability of a complaints and conciliation process has provided an accessible way for individuals to raise concerns about interferences with specific rights and to have the matter resolved outside of a courtroom, and in still other instances, individuals have been able to raise breaches of their human rights in formal legal proceedings.

These case studies also illustrate how, in addition to providing tangible benefits for all individuals in these jurisdictions, a Human Rights Act can also provide a better deal for some of the most vulnerable groups, such as people with disabilities, people with mental illness and people experiencing homelessness.

Case study: Right to security and protection of families for a refugee and her children

A female refugee and her children had settled in public housing accommodation in Victoria after fleeing civil war in their home country. She applied for alternative accommodation out of fear for her security but this request was denied by the Victorian Office of Housing. Her legal representatives were able to use the Victorian Charter to assert the woman’s rights to liberty and security (section 21) and a right to protection of children and family (section 17). After this communication from her legal representatives, the Office of Housing relocated the woman and her children to more appropriate accommodation.

Case study: Man’s rights invoked to prompt timely action by public authority

A 40-year-old man had an acquired brain injury from a car accident. He was living in an aged care home when the opportunity arose for him to move to a suitable residential care facility. He had to take up his place in the new care facility within the month or it would be offered to someone else on the waiting list. His grandparents informed the Transport Accident Commission (TAC), but TAC failed to serve notice on the provider of the new care facility within the requisite time. When the grandparents complained about the delay, the TAC said they would have to wait a further 30 days for the notice as they were following their procedure.

After seeking assistance, the grandparents wrote an email to the TAC invoking the man’s rights under the Victorian Charter. Within 12 hours of receiving this email, the TAC accepted responsibility for the delay and took action to enable the man to take up his place in the more suitable residential care facility.

Case study: Woman able to access urgent therapy

A Victorian woman with an acquired brain injury required urgent therapy to treat contractures of her left hand that were causing pain and resulting in the deterioration of her hand. Without appropriate treatment, it was likely she would require radical surgery possibly involving the amputation of her hand. The woman had been waiting three years for therapy and was not considered a priority because she was over 50 years of age.

An advocate raised the woman’s rights under the Victorian Charter and successfully secured funding for the urgent medical treatment. This result was a relatively swift resolution, in time to avoid the radical surgery. In the absence of human rights legislation it is likely the complaint would have taken far longer to resolve.

Case study: Mother living with disability asserts her right to care for her daughter

A single mother living with cerebral palsy was at risk of having her one year old daughter taken from her by the Victorian Child Protection Service. The mother sought to demonstrate that, with the appropriate assistance of carers and the use of aids, she was both emotionally and physically competent to care for her daughter.

An advocate was able to use the Victorian Charter principles to explain the woman’s human rights to the Child Protection Service, through mediation in the Children’s Court. These rights included recognition and equality before the law and protection of families and children. The Child Protection Service accepted that the mother had demonstrated her daughter was safe in her care and is no longer involved in their lives.

Case study: Right of movement for man in residential aged care

A man living in an ACT residential aged care facility relied on a wheelchair to move around. Staff at the facility became concerned the man was a danger to himself and others when using his chair so they removed the batteries so the chair would not work. The man’s advocate asserted that this breached his right to freedom of movement protected by section 13 of the ACT’s Human Rights Act.

In response, and in recognition of the man’s rights, the facility worked with the man and his advocate to find other, less restrictive, ways to ensure he was able to move about freely but safely. This included support for him to use the footpaths safely so he could travel from his home to the nearby shops when he wanted do.

Case study: Man living with disabilities able to remain in his family home

A man living with physical disabilities and limited mobility wished to continue living in his family home after his mother was admitted to a nursing home facility. After his mother had moved, the home was placed under a financial administration order by the Victorian Civil and Administrative Tribunal.

In order to prevent the family home from being sold, an advocate invoked the man’s property rights under the Victorian Charter. In consideration of this right an agreement was reached whereby the man could continue living in the house as a tenant.

Case study: Rights to privacy and security assist tenant with cerebral palsy and vision impairment

A man living with disabilities was able to assert his human rights under the Victorian Charter to contest a decision made by the state’s Community Housing Authority.

The man had cerebral palsy and vision impairment and was suffering from great anxiety in relation to the security of the housing commission premises where he lived. He asked the Community Housing Authority to install a mesh screen on his door and offered to pay for it. After his request was rejected without reason his advocate contested it, citing his rights under the Victorian Charter. Within two weeks of receiving a letter from the man’s advocate, the Community Housing Authority decided to install the mesh screen.

Case study: Victorian Charter used to secure housing for a person with disability

In Victoria, an intellectually disabled tenant was given a notice to vacate a rooming house. The behaviour that prompted the notice to vacate was a consequence of the man’s disability. The man was supported by Action for More Independence and Dignity in Accommodation (AMIDA) and Tenants Union Victoria (TUV) who used the Victorian Charter to dispute the notice to vacate before the Victorian Civil and Administrative Tribunal (VCAT).

AMIDA and TUV were able to open up a discussion with the landlord as to their obligations as a public authority under the Victorian Charter. Consequently, the landlord agreed to an alternative course of action which allowed the tenant to occupy the premises for 6 months while looking for alternative accommodation, so long as his behaviour was appropriate during this time. At the end of the 6 months, the tenant had not been in breach of any house rules and the landlord allowed him to remain in the rooming house.

Case study: Student receives support and avoids expulsion

A 14-year-old boy with a learning disability was at risk of being expelled for behavioural issues. The Youth Disability Advocacy Service (YACVIC) wrote to the high school and the Department of Education and Early Childhood Development, drawing attention to their duty under the Victorian Charter not to allow the boy to be treated in a cruel, inhuman or degrading way. After the communication, the boy was tested for disabilities and provided with the supports he needed. provided with more support. As a result, his behavioural issues reduced and the school was happy for him to remain enrolled.

Case study: Man provided with support worker who speaks his language

A Victorian man with a physical disability was eligible for Home and Community Care services from his local council. The man could not speak or understand English but the Council could not pay for both an interpreter and a support worker. An advocate negotiated with the Council and raised the man’s cultural rights under the Victorian Charter. As a consequence, the council agreed to appoint a support worker who spoke the same language, eliminating the need to pay for an interpreter.

Case study: Crisis housing restored

A man experiencing homelessness submitted an urgent complaint to the Queensland Human Rights Commission under the Human Rights Act 2019 (QLD) (‘Queensland’s Human Rights Act’). The man had been evicted from crisis accommodation and his personal possessions had been left behind. A conciliator from the Human Rights Commission assisted with restoring direct communication between the man and the crisis accommodation provider. The man received clarification that his eviction was only temporary. He was able to collect his belongings and find alternative crisis accommodation to move into. The man reported that after making the complaint he had felt he had been really listened to.

Case study: Man experiencing homelessness avoids fines for illegal camping

A man experiencing homelessness was living in his van parked in a council-controlled parking area near the beach. There were no parking fees payable in the carpark and he had chosen the location for its easy access to toilets open 24 hours a day. The man suffered from a medical condition that caused him to urgently need to use the toilets up to 20 times a day. He told the council officers patrolling the area about his medical issues but was still issued fines for illegal camping amounting to almost $3,000.

The man’s advocate assisted him to file a complaint under the QLD Human Rights Act, asserting his right not to have his home arbitrarily interfered with, his right to freedom of movement and his right to recognition and equality before the law. The Council agreed to withdraw the unpaid infringement notices and reimbursed him for fines he had already paid. The Council also agreed to train staff on their obligations under the Act.

Case Study: Access to family during COVID-19

A teenager held in remand in youth detention wanted to see his family for his birthday. However, due to restrictions imposed to prevent the spread of COVID-19, family visits were postponed at the centre. Through conciliation in the QLD Human Rights Commission the child rights to recognition and equality before the law, and to protection of families and children were applied in order to frame a solution. The detention centre and the young person’s mother agreed on a plan to maintain family contact during the pandemic. The young person talked to his family for one hour on a video call for his birthday, and once the restrictions eased his family was able to visit him in person.

Case study: Traditional custodians assert their rights to practice culture

In Queensland, an Indigenous community leader and his family asserted their distinct cultural rights in a complaint against the Queensland Police Service (QPS). The cultural rights of Aboriginal and Torres Strait Islanders are expressly protected by Queensland’s Human Rights Act, including the right to maintain their distinctive spiritual, material, and economic relationship with the land and waters with which they hold a connection.

Adrian Burragubba and his family were camping, practising their culture, and performing traditional ceremonies on a pastoral lease area when police officers claimed they were ‘trespassing’. The family told the police they had received expert advice that they could lawfully exercise their cultural rights and responsibilities but the police required them to pack up their equipment and leave within an hour.

The complaint resulted in the QPS agreeing to provide a statement of regret which was able to be shared publicly and which acknowledged that the events had caused embarrassment, hurt and humiliation for Mr Burragubba and his extended family. The QPS also committed to take cultural sensitivities into account in the future.

Case study: Rights of a child in choosing not to testify

The Fitzroy Legal Service (FLS) relied on section 17 of the Victorian Charter (the protection of rights of families and children) to successfully advocate for a child who had chosen not to testify in court. The young girl and her family had decided that testifying against her alleged perpetrators in a criminal trail was not in her best interests. They were particularly concerned about the harm the child and her family would suffer if her testimony was subjected to cross examination.

The Tribunal accepted the arguments made by FLS, that the rights of the child and her family were relevant considerations when taking into account her choice not to testify.

Case study: Aboriginal cultural rights asserted to access Koori Court (Cemino v Cannan and Ors [2018] VSC 535)

In 2017 a young Aboriginal man – Zayden Cemino – raised his Aboriginal cultural rights and his right to equality under the Victorian Charter in order to be transferred to the Koori Court for sentencing.

The Koori Court system was established in Victoria to address discrimination faced by Aboriginal people and their over-representation in all aspects of the criminal justice system. The Koori Court division of the Magistrates’ Court aims to ensure greater participation by the Aboriginal community in the sentencing of Aboriginal people.

Before Aboriginal people can access the Koori Court, they must first make a request for transfer to a magistrate. In Mr Cemino’s case, the Magistrate refused his request and he appealed to the Supreme Court of Victoria. The Court ruled in favour of Mr Cemino and confirmed that courts must consider the distinct cultural rights of Aboriginal people under the Charter when making decisions in relation to an Aboriginal person’s request to be heard in Koori Court.