Common law The common law recognises a limited number of rights and freedoms. Some key common law rights and protections include: • fair trial rights, including: »» the right to legal representation »» the privilege against self-incrimination »» a presumption of innocence in criminal trials »» a presumption that the standard of proof in criminal cases is beyond reasonable doubt • freedom of movement • prohibitions on trespass (which partially protect the right to privacy) • the right to sue in tort (for example for false imprisonment) • a presumption against retrospective laws • the rules of natural justice. However, these rights can be overridden by statute at any time and without adequate consideration and justification as long as the Parliament is clear about it. Their evolution also depends on cases being brought to court. Some general rules of common law and principles of statutory interpretation are protective of human rights. For example, the High Court has held that statutory interpretation must ‘favour construction [of a statute] which is in conformity and not in conflict with Australia’s international obligations’.23 The principle of legality also presumes that Parliament ‘does not intend to interfere with common law rights and freedoms except by clear and unequivocal language’ and that ‘statutes be construed … to avoid or minimise their encroachment upon rights and freedoms at common law. 24 Parliamentary scrutiny of human rights I NDEPENDENCE AND DI GNI TY I N AGED CARE SAF E T Y AND WE L L B E I NG OF C H I L DRE N In the UK, some aged care homes placed all their residents in ‘tilt-back’ chairs, to reduce the risk of falls. However, these chairs also prevented many residents who were otherwise mobile from getting out of the chair and moving freely. Rather, they had to wait for staff to assist them to leave the chair, limiting their dignity and independence. A human rights organisation raised with the aged care home that use of the chairs risked violating residents’ rights to private life, and not to be subject to inhuman or degrading treatment. Both these rights are protected under UK law. The homes reformed their blanket policy on using tilt-back chairs, to no longer place mobile residents in such chairs and encourage the use of walking aids around the home. Without the UK Human Rights Act, this potentially degrading treatment might have continued.25 In Australia, there are no equivalent legal protections in federal law. In Anyar v Commissioner for Social Housing (2017),29 the Australian Capital Territory (ACT) Civil and Administrative Tribunal found that a family’s human rights, in particular the protection of a young child with special needs, were unreasonably interfered with by a decision to remove them from the High Needs Housing list. These were rights expressly protected by the ACT Human Rights Act. State and territory human rights protections Ms Anyar was a single mother relying on Centrelink benefits, caring for four children. Her daughter suffered from dermatitis and eczema which was being made worse by the carpet in their current social housing. Ms Anyar was initially on the High Needs Housing list but rejected two offers of alternative accommodation as they were not suitable for her daughter’s medical condition. As a result, she was removed from the list. The Tribunal found that only properties without carpet should be considered valid housing offers to Ms Anyar. It directed that her name be returned to the list. It also recommended that the Department adjust its policies, to ensure consideration of human rights as a routine part of decision making. Since 2011, new Bills and certain legislative instruments must be assessed for their compatibility with human rights.30 A member of Parliament who introduces a Bill must prepare a Statement of Compatibility, justifying any limitations on individual rights and freedoms. This is an important mechanism which helps Parliament consider the human rights impacts of a law before it is passed. However, these statements are largely educative. They can inadequately justify a breach of human rights. They cannot be challenged and do not bind a court or tribunal.31 They do not affect the validity, operation or enforcement of a Bill.32 The Commonwealth Parliamentary Joint Committee on Human Rights (PJCHR) is also empowered to examine Bills and legislative instruments for compatibility with human rights.33 It can also examine current laws34 and inquire into any matter referred to it by the Attorney-General.35 In exercising these functions, the PJCHR must report its findings to both Houses of Parliament.36 The PJCHR process can assist Parliament to consider the human rights impact of a Bill in more depth.37 Statements and reports of the PJCHR may also assist a court in interpreting legislation,38 where the meaning of a provision is ambiguous.39 However, the PJCHR cannot compel Parliament to alter or abandon a Bill, law or policy even if it is incompatible with human rights. Human Rights Acts have been passed in Victoria,26 the Australian Capital Territory27 and most recently Queensland.28 These acts bind the relevant state and territory public authorities, including government departments, statutory authorities and public servants. Common features of state and territory Human Rights Acts, such as the Charter of Human Rights and Responsibilities Act 2006 (Vic), include that: • public authorities must act compatibly with human rights and properly consider human rights in decision-making • before passing a law, Parliament must consider how proposed legislation will affect human rights • courts must interpret legislation consistently with human rights • a person can make an application to a court seeking remedies where their human rights have been breached, except for damages. 8 FREE AND EQUAL An Australian conversation on human rights 2019 FREE AND EQUAL An Australian conversation on human rights 2019 9