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IsaiahOne Submission to Inquiry into Charter of Human Rights and Responsibilities Act 2006 - 1 July, 2011 (part one of summary)

Monday, 1 August 2011  | Angus McLeay and Erin Sciola

IsaiahOne is a cross-denominational Christian organisation educating and advocating on human rights. Its name is inspired by the 8th century BC Hebrew prophet Isaiah, who called the people of God to  “seek justice, encourage the oppressed, defend the cause of the fatherless, plead the case of the widow” (Isaiah 1:17)

Many in the Christian community are passionate about human rights and their potential to work towards this Biblical calling. Yet there is sometimes also a measure of uncertainty among Christians about how to understand and apply human rights, an uncertainty which is also seen in contemporary Victoria. Some within the Christian community regard human rights with suspicion and see it as a threat to religious freedom and incongruent with Christian teaching.

IsaiahOne argues that human rights cohere with many fundamental aspects of Christian tradition and teaching. A recent comprehensive defence for this position has been made by the eminent Christian philosopher, Nicholas Wolterstorff, Justice: Rights and Wrongs (2008).

Christian Human Rights Involvement

In 2006, 43.4% of Melbourne churches were involved in activities described as “political / social justice activities” (P. Hughes & S. Reid, All Melbourne Matters: Research of Church in Melbourne (2009) p78), and this involvement with human rights and social activities is long-standing. The Christian-led movement to abolish slave-trading in the 18th century is regarded as an archetype of human rights-based social change.

Effects of the Charter on Provision of Services and Remedies for Infringements of Rights

The provision of services by public authorities has particular meaning for the most dependent members of the community, as well as many outside the mainstream. The effects of the Charter Act on the vulnerable, needy and marginal is of deep concern to many Christians who are actively serving the community. Here is a snapshot of the nature of those concerns:

“Many people Urban Seed sees are frustrated at the experience they have daily in dealing with government agencies and public authorities. There often seems to be little or no consideration given to the rights and needs of the whole person as they are broken down into categories surrounding their individual circumstances, which may include homelessness, addiction and mental illness.” (Chris Lacey, Executive Director of Urban Seed, Collins Street Baptist church).

Another example comes from a disability support worker:

“For those whose networks of support may be weak or indifferent, instruments such as the charter of rights and responsibilities may be the only guarantee they have available to them to determine the quality of care and attention that they receive. Such beautiful humanity need to have their rights upheld for them when they are not able to do so themselves.” (Charles Robin, Wantirna)

And from a prison chaplain:  

I listen to the life experiences of many men and frequently am hardly surprised that life for them has turned out the way it has…One cannot condone the actions that lead to incarceration but each and every individual in prison must have their basic human rights protected. Denial of rights would exacerbate the problems [of the correctional system] and make matters far worse.” (John Waddell, Anglican Chaplain - Metropolitan Remand Centre, Barwon Prison, Marngoneet Correctional Centre)

An Aboriginal pastor shares his support for the Charter’s protection of Aboriginal Australians:

Aboriginal persons need their cultural rights respected and upheld. In no circumstances must those rights be tampered with, specifically as described in section 19 (2) and its sub-sections. I encourage the Government to ensure that our rights are upheld.” (Pastor Lloyd Hollingsworth, Nunawading).

The head of an organisation helping those caught in addictions and sex work states:

A very unfortunate aspect of our culture is that marginalised people, in addition to suffering from the hardship of their situation, are subjected to alienation and discrimination by mainstream society. One of the most significant barriers we find, working with the women, is their sense of social exclusion, of feeling different and unable to access mainstream society. As one woman said “we’re a group who just don’t fit in”. The individuals who we work with are daily seen by society as commodities rather than as human beings. Their rights are particularly at risk and need strong protection.” (Sally Tonkin, CEO St Kilda Gatehouse, St Kilda)

In the last 4 years of operation, the Charter Act has demonstrated a capacity to provide just, timely remedies for infringements of the rights of Victorians. Examples include court-based remedies but also many others which avoid the judicial system. They are well-documented in various reports, submissions and websites. Here is a selection:

(A) Advocacy-based Outcomes

1. An asylum seeker otherwise denied basic medical treatment being given access to a hospital when the Charter was used to advocate on her behalf.

2. A single mother of two avoided eviction into probable homelessness when her barrister used the Charter to negotiate a solution with the Housing Commission, avoiding escalating the dispute through the courts.

3. A boy with Aspergers Syndrome was eligible for disability support after a court application using the Charter prompted the Government to review and revise its disability definition (autism disorders now include Aspergers.) This policy change affects all those with Aspergers who require disability support.

4. The Charter was used to help negotiate a common-sense outcome for a man whose recently deceased partner was the public housing lease-holder. This greatly reduced the risk of him falling into homelessness.

5. The Charter was used to assist an Iraqi refugee with an intellectual disability who was moved by public authorities to a facility isolated from family and inflexible with regard to his language, cultural and religious circumstances. The man’s rights to family life and respect for his religious beliefs - such as being provided Halal food – were used to find more suitable accommodation.

6. Several young people with brain injuries who were due for discharge from a rehabilitation centre were going to be accommodated in aged-care facilities. This facility lacked important recovery services for the young people. The Charter was used as a basis for re-considering rehabilitation options leading to alternative arrangements better suited to the young people and their families.

(B) Court-Based Outcomes

1. A man with a mental illness gained a review of distressing involuntary drug treatment, otherwise denied by existing systems and procedures which were meant to allow this.

2. A single father facing sudden and immediate eviction from public housing was granted an extension of time to find alternative housing so as to avoid becoming homeless. This case is particularly important as a precedent for handling decisions affecting all Victorian families in public housing.

3. The Charter was used to enable evidence to be given in court against a paedophile. The right of two child victims to testify against the perpetrator was being denied by a minor technical procedural issue that the Charter helped to overcome.

(C) Systemic Reform Outcomes

1. The Charter was used by a disability service to recognise and enable their clients to exercise their right to vote.

2. The Charter was used in training and modifying procedures allowing for the humane treatment of detainees in facilities operated by a private contractor. Changes included improved strip-search procedures and measures designed to respect detainee’s religious beliefs.

3. The wearing of turbans in court by police was permitted in a regional area of Victoria following consideration of the Charter’s right to freedom of religion.  

Christian groups and individuals welcome the way the Charter has delivered remedies like these to Victorians whose rights have been overlooked:

As a Christian community organisation founded in Victoria over 40 years ago, TEAR Australia is committed to Human Rights and encourages the Victorian Government to uphold and strengthen its commitment to Human Rights through the Victorian Charter of Human Rights and Responsibilities.” (Viv Benjamin, National Advocacy Co-ordinator, Tear Australia, Blackburn).

The Victorian Charter of Rights is an important instrument, not only for the work it does in keeping law and policy makers accountable, but also in what it aspires to. As the only Western liberal democracy in the world without a Human Rights Act, Australia suffers a lamentable lack of awareness and understanding of human rights. This gap in society's insistence on human rights is what leads to some of the most entrenched human rights violations in Australia. (Broad popular and political support for a system of mandatory indefinite detention of asylum seekers is just one of many glaring examples of this)... Any step away from the Charter would be a pity for the legal and human rights landscape of this country. If there is any role for religion in politics, surely it would be to exhort our leaders to aspire to the biblical notions of justice, mercy and compassion for the least protected in our society.” (Jessie Taylor, Lawyer & Refugee Advocate, Melbourne)

Anyone involved in the Victorian Criminal Justice System knows that for the average defendant experiencing ‘justice’ is more an ideal than a reality. Bureaucratic, cumbersome, expensive – the present system is an anachronism long overdue for reform.... Whereas the monolith we have created cannot easily be turned around, a good starting point is The Victorian Charter of Human Rights and Responsibilities. I urge the present Government to show foresight and wisdom in not abandoning this important instrument.” (Arthur J Bolkas – CEO PASS – Reintegration Support for Released Prisoners, Footscray).

As a Christian who is a refugee and immigration lawyer, and a manager of refugee settlement programs in the community, I am committed to the Victorian Charter’s role in protecting the vulnerable and needy in our society. While the Victorian Charter does not reach the injustices that plague the Federal Government’s immigration processing that takes place in Victoria, it does play a valuable role for refugees and vulnerable settlers who have visas issued to them and are making a new life in Victoria. Many refugees who settle in Victoria have fled religious persecution – such as Christians who fled Iraq, Falun Gong from China, or Hazara Shia Muslims from Afghanistan – to name a few. For them, there can be ongoing fear and trauma around religion and persecution by the dominant majority of minorities. The fact that Victoria actively protects freedom of religion in the Charter, as well as protects against racial discrimination, are steps in conveying the safety of our multicultural society, and healing from past persecution.” (Jo Knight, Refugee and immigration lawyer and member of the national Anglican Refugee and Migrant Network, Kew).

As a Christian and a manager working in the community, legal and education sectors, I believe the importance of the Charter as a ‘statement of commitment’ by the State and as a tool for education is an aspect that is often overlooked... Human rights principles or Freedom, Respect, Equality and Dignity are fundamentally in accord with Christian theology, values and teaching as well as community values and new ways of educating all ages about these should be encouraged in a wide range of settings.”  (Michael Smith, CEO, Eastern Community & Legal Centre and Chair, Youth Ministry Support Team, Banyule Network of Uniting Churches, UCA).

Conclusion: Effects of the Charter on Provision of Services, Remedies for Infringement of Rights

Several threads run through these and other cases:

  • Advocacy drawing on the Charter outside the judicial system is often used to improve service delivery and provide remedies;
  • Some Charter cases involving individuals have spurred important wider reforms, such as improved Housing Commission eviction procedures;
  • Protection of family life under the Charter frequently recurs;
  • The Charter is being used to recognise and protect religious freedom.

As a mechanism for addressing human rights concerns, the Charter Act offers several key advantages when compared with alternatives such as additional legislation targeting human rights breaches and strengthened powers for Ombudsmen:

1. The Charter’s content is based upon the civil and political rights in the Universal Declaration on Human Rights. As such it offers a well-recognised and formulated account of the community’s rights. This may enable Government and public authorities to be more galvanized and effective on human rights issues than by trying to formulate their own policies and guidelines de novo.

2. Government and individual public authorities can develop specific applications appropriate to their circumstances with reference to the Act’s general statements. Expanding the list of enumerated rights too far risks overloading Government with too many responsibilities to effectively apply.

3. The Charter mechanism is a prompt and pro-active approach to human rights breaches. Other monitoring systems such as Ombudsmen, are important review mechanisms but are primarily retrospective in process and effect. That is, a problem or set of problems are reported, reviewed and a report is produced. Responses then need to be effectively implemented. Human rights abuses may go on for long periods before being recognised and remedied by such retrospective systems. This is of particular relevance to marginal groups such as indigenous Australians.

There is broad-based, concrete evidence that the Charter Act has produced tangible and significant benefits for many Victorians who are most in need of human rights protection. As seen from the comments above, this outcome is of great importance for many Christians, not least those involved in serving the community. From this concern the submission turns to consider another, the protection of religious freedom.


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