The Ombudsman for Human Rights: A Casebook

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“ It was blatant discrimination … they made no consideration of her needs.” Bystander, complaining about treatment of a woman in a wheelchair at a COVID-19 test site.

Human rights issues can crop up every day, for every one of us. As the human rights investigator for Victoria, my office knows that human rights breaches do not only take place in war-torn dictatorships far from our peaceful shores.

But commonly, the human rights failures we see are not deliberate – those in authority simply fail to consider or fail to balance some of the fundamental principles that underpin our basic freedoms.

Victoria has had human rights legislation since 2006, protecting 20 fundamental rights and freedoms, giving us a legacy we should be proud of. But all too often human rights are poorly understood both by the public agencies who are obliged to consider them and by the public they are intended to protect.

This casebook presents a snapshot of the thousands of matters involving people’s human rights that we see each year. They illustrate the rights of children and families, kinship carers, injured workers, activists and prisoners, of everyday Victorians. Their stories illustrate the reach of human rights in our society and their impact on decision-making, and the balancing act public agencies sometimes need to carry out to get it right.

Take for instance a family whose public housing home was so damaged they could not sleep there, a woman in a wheelchair in a COVID-19 testing queue, or the three thousand residents of public housing tower blocks in inner Melbourne who were subject to a hard lockdown with no warning in July 2020.

Seemingly small decisions can have a big impact. A family’s right to a safe home was compromised by asbestos removalists damaging their house, which left them with nowhere to stay the night. A woman whose daughter is on life support relies on an electricity discount to pay for the machines keeping her daughter alive. She was told the discount did not apply because the machines were not on the Department’s list of approved models.

Human rights are not absolute. This has been starkly borne out by the COVID-19 pandemic, when many of the rights and freedoms taken for granted all our lives have been, and continue to be, suddenly curtailed.

Lockdowns, border closures and compulsory mask-wearing restrict our freedoms of movement and expression, but these rights must be balanced against our own – and others’ – health and wellbeing and right to life.

This can be a difficult balancing act, including for my office. We do not investigate all complaints alleging human rights breaches, but we did investigate the unique circumstances of the public housing lockdown.

In that case the balancing act failed: the public health advice supported a lockdown but not an immediate one, and the residents’ right to humane treatment when deprived of liberty was unreasonably limited.

We also see the balancing act working. The right of a passionate community activist to take part in public life was balanced against the rights of Councillors, staff and community members to whom he was aggressive. The Council’s response, including a time-limited ban on him attending Council meetings, was proportionate and reasonable.

A decision to fence off access to popular rockclimbing places in the Grampians National Park also demonstrated the balance working. Parks Victoria had to weigh up the rights of rock-climbers with the cultural rights of Aboriginal peoples, to protect the area while cultural heritage surveys were prepared and communities consulted.

“ Human rights are not absolute. This has been starkly borne out by the COVID-19 pandemic, when many of the rights and freedoms taken for granted all our lives have been, and continue to be, suddenly curtailed. ”

Human rights are often associated with the rights of prisoners, underlining the basic principle that those deprived of their liberty should not also be deprived of fairness, and should be treated humanely. This principle is all the more important given the disproportionate number of people in prison who have mental health issues or an intellectual disability – and as the cases show, for whom prisons can be particularly unsafe.

Recent cases illustrate our rights in a pandemic, which has exposed some uncomfortable truths about freedoms we used to take for granted. There can be little doubt COVID-19 has forever changed the public’s conception of government, human rights and what is possible in Australia. We see limitations on those freedoms that would not long ago have been unimaginable. But even during a global pandemic, human rights cannot be ignored.

Had dignity been considered when a woman needed the toilet while awaiting transit to hotel quarantine, she would not have had to urinate in a plastic water bottle on a moving bus.

The Charter of Rights Act gives us a framework for assessing the restrictions on our freedoms, pandemic-related or not – and helps the public sector make better decisions.

It is more important than ever that the public understands how their rights may - or may not – be breached, and the requirement of government to get the balance right.

The act of considering human rights is no more or less than putting people at the heart of decision-making. Your rights, my rights, families’, neighbours’ or strangers’ rights, they all matter, though the scales may still tilt.

Deborah Glass