compatibly with human rights. In some cases, it
is only when a policy or program is considered in
the context of specific individual circumstances
that potential infringements may become
apparent. Some public authorities reported to the
Commission that complying with the Charter can
focus attention on alternative ways of resolving
issues.
that using a rights framework "helps us to be
cognisant of our actions and the potential for
our actions to restrict human rights. We actively
promote human rights the Charter `keeps us
honest' in doing this. A rights framework helps us
to think carefully about our decisions and their
impacts on individuals".
critical to fulfilling the Charter. For example, a
Sherriff's Officer held a warrant to imprison a
Koori defendant. The defendant had failed to
pay a debt and had no capacity to pay the debt
owed. The Sherriff's Officer made enquiries
regarding the defendant's circumstances and
discovered that the defendant had a terminal
illness. Given these circumstances, the
Sherriff's Officer considered that imprisoning
the defendant may amount to an unreasonable
limit on the defendant's human rights under the
Charter (including the right to liberty, which must
not be arbitrarily or unlawfully interfered with).
Other Charter rights relevant to the decision
not to imprison the defendant included the
right to equality before the law and the right to
a fair hearing. The Sherriff's Officer sought to
have the warrant stayed so that alternatives to
imprisonment could be considered.
they have put in place systems to monitor and
review their compliance with the Charter. These
mechanisms are important tools for authorities to
identify and meet their legal obligations. They can
also used by the community to review and hold
public authorities to account.
Bail Engagement Program, a human rights
assessment of the program identified that there
was a risk of bail conditions being set without
sufficient assessment of a young person's
individual circumstances. The human rights
assessment of the program led to adjustments to
ensure that the best interests of the young person
are considered in bail applications.
the Charter, individuals can remind public
authorities of their obligation to act compatibly
with the Charter and can question the decisions
of public authorities in delivering services to the
community. They can also raise the Charter in other
claims they might bring against public authorities.
Charter to assist psychiatric inpatients
undergoing electroconvulsive therapy (ECT)
to obtain a fairer hearing before the Mental
Health Review Board.
facilities were administering ECT to patients
on the morning of Board hearings at which
the status of the patient as an involuntary
patient was to be reviewed. As ECT often
has severe effects on a patient's memory
and cognition, hearings would either be
adjourned (often precluding the ability
of the patient to effectively challenge the
decision to treat them with ECT) or proceed
while the patient was suffering the effects
of ECT, jeopardising the fairness of the
hearing.
Psychiatrist that this practice potentially
breached patients' right to a fair hearing
(section 24 of the Charter) as well as
the right not to be subjected to medical
treatment without consent (section 10(c)),
the right to liberty and security of person
(section 21(1)), the right to those detained
to apply to the court for an order regarding
the lawfulness of detention (section 21(7))
and the right of those detained to be
treated with humanity and respect for the
inherent dignity of the person (section 22).
Psychiatrist developed a guideline
establishing a presumption against
administering ECT on the morning of Board
hearings, unless there is essential clinical
need. In those limited and exceptional
circumstances, the mental health service
must notify the Board and VLA so that the
patient's matter can be listed in a manner
that will minimise adverse impacts on the
hearing.