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Connecting human rights to everyday life

Connecting Human Rights cover pictureWhat are human rights?

Human rights are fundamental and universal rights. At their core all human rights embody values that emphasize human equality, dignity and liberty. The legal protection of human rights exists in two main ways: to limit the scope of government power over an individual or to give individuals and groups enforceable legal rights.

The universal nature of human rights is recognised in a number of international agreements which have been entered into by governments all over the world. These include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of Racial Discrimination, the Convention on the Rights of the Child and many others. These international agreements contain both the substance of human rights obligations and mechanisms for their enforcement and monitoring.

Human rights fall into two broad categories: civil and political rights and economic, social and cultural rights.

Civil and political rights include:

  • Freedom of speech and association
  • Freedom from arbitrary arrest or detention
  • The right to be presumed innocent until proven guilty according to law
  • The right to defend oneself or use legal assistance of one’s own choosing
  • The right not to be subjected to arbitrary or unlawful interference with one’s privacy

Social and economic rights include:

  • Access to food, housing, work, education, social security and health care
  • The right to fair wages and safe working conditions
  • The right to education
  • The right to equal pay for equal work

Australia has signed most of the major international human rights agreements. Australia has also enacted some of its human rights obligations into domestic law, making these obligations enforceable in Australian courts. This can be seen, for example, in legislation prohibiting racial discrimination or regulating police powers. The common law in Australia is also an important source of legal rights and remedies that  informs human rights. In 2009 the Australian government released the landmark report of the National Human Rights Consultation Committee. A common theme that emerged from the stories told by the many thousands of submissions was the gap in legal protection of rights which affect the most vulnerable and marginalised members of the community. The report found that access to legal education and assistance is critical in ensuring that people are aware of their rights and can seek the necessary assistance to enforce those  rights when they are put at risk.

Legal Aid NSW is informed by these human rights principles to ensure that its civil law services are directed towards the most disadvantaged in our community. Some of these services are explained in the article below.

This webpage also provides information about the Legal Aid Human Rights Committee and how referrals can be made to the Committee.

Legal Aid NSW - helping disadvantaged people to exercise their rights

Human rights abuses happen everyday. Whilst a person's human rights can be breached in extreme ways such as torture or the impact of civil war, rights  are also breached when a person is unlawfully searched by police, or when they are unable to access basic rights such as housing and income support, or when they are discriminated against on the basis of their race, disability or gender.

Legal Aid NSW provides a range of legal services that promote and enforce fundamental human rights to assist people to overcome barriers to full social and economic participation.

The civil law division of Legal Aid NSW provides advice and assistance for matters such as:

  • legal issues impacting on homelessness;
  • human rights law (such as discrimination, wrongful arrest and false imprisonment matters);
  • government law (which deals mainly with Commonwealth administrative law in social security and refugee/migration matters);
  • consumer law (focusing on insurance, sale of goods and provision of credit)
  • employment law; and
  • elder law (focusing on issues that predominantly affect older Australians)

A special fund also exists for public interest human rights matters, for which legal aid might not be otherwise available. (See the section below on the Legal Aid NSW Human Rights Committee for more information.)

As well as general advice and assistance services, Legal Aid NSW has specialist legal services to assist people who are particularly vulnerable or require additional support. These services include:

  • Mental Health Advocacy Service;
  • Veterans’ Advocacy Service;
  • Public Interest Coronial Inquest Unit;
  • Prisoners Legal Service; 
  • Sexual Assault Communications Privilege Service; and
  • Work and Development Order Service 

Legal Aid NSW operates over 160 outreach advice clinics throughout NSW to help people access legal services.

 

Right to liberty and not to be subjected to arbitrary arrest

M was a young Aboriginal child who suffered from an intellectual disability. Walking home late one night he was stopped and questioned by police, who then arrested him for allegedly breaching a bail condition.  He was taken to the local police station. At this point M became very distressed and began to cry, asking to be released into the care of grandmother and denying that he was subject to any bail condition.  He was kept in custody overnight and the following morning taken to Juvenile Justice Centre where he was strip searched and detained for several hours before being transferred to the local Children's Court.  Upon appearing before the Children's Court, M was immediately released as the Court found he was not subject to any bail conditions and his arrest was unlawful.

As a result of his unlawful arrest and detention M suffered loss of liberty as well as shock, trauma and humiliation. His arrest and detention disregarded a number of legal provisions that aim to protect vulnerable people, especially Aboriginal children. Legal Aid NSW assisted M in making a claim against the police for unlawful arrest and false imprisonment. It was argued that the manner in which M, a vulnerable child, was arrested, treated at the police station and unlawfully held from late in the evening to afternoon the following day was particularly egregious.   The case ultimately settled with the client receiving damages for unlawful arrest and false imprisonment.

Right to income

Legal Aid NSW represented a woman whose application for the Disability Support Pension (DSP) had been rejected by Centrelink. Our client suffered from chronic pain and depression and was being treated for those conditions. The Administrative Appeals Tribunal (AAT) accepted that she was suffering from these conditions but found she was not eligible for the DSP because she had not been treated by a psychiatrist or a psychologist.

We represented our client in both the Federal Court and the Full Federal Court where it was found that the decision of the AAT should be overturned because it did not address the proper questions in assessing our client’s eligibility for DSP.

The Federal Court took into account the capacity and resources of social security recipients to obtain medical treatment. It found that the law required the decision maker to assess whether a medical condition had been treated and if so, whether it was still disabling rather than to speculate whether some other kind of treatment might have achieved a better result.

Work and Development Orders (WDO)

The Work and Development Order Service, a partnership between Legal Aid NSW and the Aboriginal Legal Service (NSW/ACT), helps vulnerable people with unpaid fines.  A Work and Development Order (WDO) is made by the State Debt Recovery (SDR) and is available to people (children or adults) who are homeless or suffering from acute economic hardship, mental illness, intellectual disability, cognitive impairment or serious addiction. WDOs allow eligible people to reduce or eliminate their SDR debt by undertaking positive activities such as voluntary work, courses, counselling or treatment programs. Enforcement action stops and licence sanctions are lifted when the WDO commences.

WDOs help break the cycle of accumulated debt, reoffending and social exclusion amongst many disadvantaged members of the community. Millions of dollars have been "worked off" since the scheme started with significant benefits for the individual and the community.

Rights of persons with disabilities and the rights of the child

Ms T came to Australia from Vietnam and was the primary carer for her two children, both of whom suffered from severe autism. Ms T herself suffered from a mental illness and needed help to take care of her disabled children. She made an application for a carer's visa which would have allowed her sister to come to Australia from Vietnam to help Ms T. 

The application was rejected on the basis that the assistance of Ms T's sister would not be effective in providing care and that the appropriate care could already be provided for by social services. Legal Aid NSW helped Ms T appeal the visa decision to the Migration Review Tribunal (MRT). Aid was granted on the basis that the Convention on the Rights of the Child as well as the Convention on the Rights of Persons with Disabilities contain obligations to ensure children with disabilities are cared for adequately. Ms T was successful on her MRT appeal and now has the additional support she needs to take care of her children.

Policy and education work

Legal Aid NSW also recognises the importance of combining policy and education work to advocate for systemic change. Partnerships with other organisations are also part of Legal Aid's work. An example of our joint work was the Children in Detention Advocacy Project (‘CIDnAP’), established in partnership with the Public Interest Advocacy Centre and the Public Interest Law Clearing House NSW. This project responded to systemic issues faced by young people in the criminal justice system. Further partnerships with community legal centres have established programs to help migrant women in the workplace to protect their employment rights, assisting people seeking asylum from offshore challenge rejections of their application for refugee status, and a project to meet the legal needs of prisoners facing visa cancellation.

The Legal Aid NSW Human Rights Committee

In 2005, Legal Aid NSW established a special fund for human rights matters with a wider public interest. This allows Legal Aid NSW to provide assistance in important matters where legal aid might not otherwise be available. The fund has an annual budget which can be granted to private, community legal centre and in-house lawyers.

The Legal Aid NSW Human Rights Committee provides expert advice on applications for legal aid in public interest human rights matters. The Committee consists of lawyers and legal academics with specialist knowledge and expertise in human rights and makes recommendations on whether applications should be funded. The Committee seeks to identify matters that would otherwise fall outside Legal Aid guidelines, but which raise significant public interest issues affecting human rights.

Applications for legal aid under this policy are received from a broad range of groups such as prison welfare officers, community legal centres, community and youth workers, and private lawyers.

Referrals to the Human Rights Committee

Referrals to the Human Rights Committee are made by lodging an application for legal aid under the Public Interest Human Rights Policy. Applicants are also subject to a means and merit test and aid can only be approved where there are sufficient funds available to fund the action which they want to take. See page 11 for more details about lodging an application.

Membership of the Human Rights Committee

Members of the Human Rights Committee are appointed by the Chief Executive Officer of Legal Aid NSW. They include representatives from Academia, the Law Society of NSW, and the NSW Bar Association. See the Legal Aid NSW website for a list of current members: www.legalaid.nsw.gov.au

Non-refoulement rights of refugees

The right of non-refoulement is a fundamental right, principally afforded to refugees, not to be returned to their country of origin where they would be at risk of persecution or where their life would be placed at risk. It is contained in the Refugee Convention as well as the Convention against Torture and the International Convention on Civil and Political Rights.

Legal Aid NSW acted for a Sudanese national who was accepted by Australia as a refugee after 13 years in refugee camps in Kenya and Ethiopia. By the age of 15, our client had fled war three times, twice in Sudan and once from Ethiopia. He subsequently became one of the ‘Sudanese Lost Boys’ and was forced to undertake weapons and basic training as a child soldier.

Our client arrived alone in Australia when he was 30 years of age; he had lost many family members to conflict and was unable to make contact with the others. After his arrival in Australia he was diagnosed with depression and began abusing alcohol as a result of the trauma he had experienced. He had three encounters with police over an 18 month period while drunk and in a disturbed state for resisting and assaulting police but has not been charged for causing any harm to the community.

The Department of Immigration and Citizenship (DIAC), now called the Department of Immigration and Border Protection, issued our client with a Notice of Intention to Consider Cancellation of his visa which would result in his deportation from Australia and his return to Sudan.

The Legal Aid Human Rights Committee recommended a grant of legal aid in this matter. After submissions from Legal Aid NSW, the DIAC decided not to cancel our client’s refugee visa and he is now receiving treatment for his depression and other dependency issues.

Right to appropriate housing and the right of persons with disabilities to live in the community

The Legal Aid Human Rights Committee recommended Legal Aid NSW represent a not–for-profit organisation that commenced proceedings in the Administrative Decisions Tribunal against the NSW Department of Ageing, Disability and Home Care, which funded a residential institution for people with multiple physical and intellectual disabilities.

It was argued that the service provided to residents at the institution failed to conform procedurally and substantively to the objectives of the Disability Services Act ("the Act") and therefore could not be funded under that Act. The objectives of the Act require a minimum standard of care and individualised support for residents, depending on their level of functioning and taking into account their desire to integrate into a community at large or develop independent living skills. The model of care under which services were provided failed to consider the right of the residents to live in the community and to access opportunities that would enhance their lives. The matter was ultimately settled with an outstanding result achieved for the residents.

Right to just and favourable conditions of employment

Mrs P was a qualified baker who came to Australia on a temporary visa.  In 2011 she received sponsorship from a bakery in regional NSW and moved from Melbourne to take up the position on the basis that it would lead to permanent residence.   After beginning employment with the new bakery she raised concerns about occupational health and safety issues and violations of the employment award, such as the employees not being allowed to take breaks. For raising these issues her employer reduced her hours, denied her overtime and weekend shifts, and she was dismissed one day before the end of her probation period. The employer's sponsorship was also withdrawn which meant she could no longer apply for permanent residency.

Legal Aid NSW assisted the client by bringing a claim against the employer in the Federal Magistrate's Court for breach of the general protection provisions of the Fair Work Act. This case highlighted the intersection between human rights and employment rights as well as the systemic problem of exploitation of vulnerable migrant workers. The case ultimately settled favourably for the client.

Public Interest Human Rights Policy

Under Legal Aid's Public Interest Human Rights Policy aid is available for public interest human rights matters where a case:

  • has a significant wider public interest, and
  • raises significant human rights issues.

Definition of public interest under Legal Aid NSW Guidelines

Public interest is something of serious concern common to the public at large or a significant section of the public, such as a disadvantaged or marginalised group. For something to be of “public interest” it must amount to more than a private right or individual interest, although the two may coincide. There may be competing public interests in any one case that have to be weighed against each other.

Human Rights Fellowship

Legal Aid NSW runs a Human Rights Fellowship Program in collaboration with the University of New South Wales. The Program is targeted toward UNSW law graduates, who are seeking an opportunity to work in a human rights practice whilst undertaking practical legal training requirements for admission as a solicitor. There are two Fellowship positions offered each year, each for a period of 6 months duration.

The Fellowship Program provides an excellent opportunity for graduates to gain experience in human rights advocacy through case preparation, policy development and community legal education. Fellows assist Legal Aid NSW solicitors to prepare briefs for the Human Rights Committee, conduct legal research into complex areas of law, and in direct casework such as the preparation of statements, taking instructions from clients, inspecting documents, and briefing counsel.

For more information about the Human Rights Fellowship Program contact the Human Rights Group senior solicitor on 9219 5790 or the Australian Human Rights Centre at UNSW on 9385 1803 or visit http://www.ahrcentre.org/.

Lodging applications for legal aid

An application for legal aid can be lodged, either via Grants Online (for private lawyers), or in hard copy to:

Legal Aid NSW
PO Box K847
HAYMARKET NSW 1238

Or fax: 02 9219 5070.

It is important to include copies of any relevant documentation with the application, such as notification letters and attached documents, correspondence with any court or tribunal, any relevant expert reports, or any other documentation that will assist in assessing how urgent the matter is and what human rights might be involved.

Further Information

Further information about aid under the Public Interest Human Rights Policy can be obtained from the head of the Human Rights Group, Civil Law, Legal Aid NSW, 9219 5790.

For general enquiries about Legal Aid NSW contact LawAccess NSW on 1300 888 529 or visit www.legalaid.nsw.gov.au.

To access Legal Aid NSW Policies and Guidelines online, go to Policy Online.

 

This information is intended as a general guide to the law. It should not be relied on as legal advice and it is recommended that you talk to a lawyer about your particular situation.
 
At the time of updating, the information shown is correct but may be subject to change.
 
If you need more help, contact LawAccess NSW on 1300 888 529.
 
A print copy of this brochure may be ordered online.

November 2013