The Disability Act 2006 creates a new legislative scheme for persons with a disability which reaffirms and strengthens their rights and responsibilities and which is based on the recognition that this requires support across the government sector and within the community.

Victoria is the first state to enact comprehensive legislative protections for civil and political rights. The Charter of Human Rights and Responsibilities Act 2006 seeks to promote and protect the human rights of all Victorians by ensuring that legislation is enacted and interpreted as far as possible compatibly with Charter rights and by imposing an obligation on public authorities to act compatibly with Charter rights.

The Charter does not protect economic, social and cultural rights. The rights protected by the Charter are derived from the International Covenant on Civil and Political Rights and include: recognition and equality before the law; the right to life; protection from torture and cruel, inhuman or degrading treatment; freedom from forced work; freedom of movement; protection of privacy and reputation; freedom of thought, conscience, religion and belief; freedom of expression; the right to peaceful assembly and freedom of association; protection of families and children; the right to take part in public life; cultural rights; property rights; the right to liberty and security of the person; the right to humane treatment when deprived of liberty; protection of children in the criminal process; the right to a fair hearing; rights in criminal proceedings; the right not to be tried or punished more than once; and protections in relation to retrospective criminal laws.

This bill seeks to allow stem cell research, while placing very tight restrictions on it. The bill provides that embryonic stem cells must be destroyed after a 14 day time limit and outlaws transplantation of embryonic stem cells into a human or animal host. The bill does allow for a somatic cell nucleus to be transplanted into an animal egg, but the same 14 day time limit applies. This would enable scientists to better study the way diseases and cancers form and divide.

This bill has faced much opposition with claims that it would place the right to life in jeopardy.

Joseph Thomas is an Australian citizen who was apprehended and detained in Pakistan for a period of about six months in 2003. When Thomas returned to Australia, he was charged and eventually convicted at trial for receiving funds from a terrorist organisation and owning a false Australian passport.

Both convictions were set aside on appeal to the Victorian Supreme Court. The Human Rights Law Resource Centre Ltd and Amnesty International applied unsuccessfully to make amicus curiae submissions on the relevance of international human rights law to the appeal. The court rejected the applications holding that the submissions were founded on established criminal law principles and that these principles themselves embodied important notions of individual rights.

The Court of Appeal considered the right to silence and the right to a fair trial under Australian criminal law. The convictions had relied on the admissibility of evidence from an interview conducted by the Australian Federal Police whilst Thomas was being detained in Pakistan in 2003. The Court of Appeal found that the interview had not been conducted properly and fairly, and that although Thomas had been informed of his right to silence, Thomas’ admissions in the interview, and the interview itself, were not voluntary and therefore the evidence was not admissible. The Court of Appeal also found it was necessary to consider the circumstances in which the interview was conducted. They found that Thomas’ fears for his safety and being blackmailed with personal items, such as photos, prohibited him from exercising his rights, including the right to silence.

This case also brings attention to the right to a fair trial. The Court of Appeal has ordered a re-trial. With media attention and public awareness of Thomas’ case, it is questionable whether Thomas will be afforded the right to a fair trial.

This was an appeal against an extended supervision order under the Serious Sex Offenders Monitoring Act 2005 (Vic). It is the first case where the Victorian Court of Appeal has referred to Victoria’s newly enacted Charter of Human Rights and Responsibilities.

TSL was convicted for sexual offences and completed a prison sentence. The Secretary to the Department of Justice had applied for a five year extended supervision order for TSL. The application was made on the basis that if TSL wasn’t under an extended supervision order, he was likely to commit a relevant offence (such as a sexual offence) if he was released into the community. A court can order an extended supervision order if it is satisfied to a ‘high degree of probability’ that an offender is ‘likely’ to commit a relevant offence.

The court allowed TSL’s appeal and revoked the extended supervision order. The court’s decision was grounded in the nature of our ‘free society’ and the limitations that would be placed on TSL if the extended supervision order was allowed. The court referred to section 7(2) of the Charter of Human Rights and Responsibilities which says that human rights can only be subject to reasonable limits under law and limits which can be justified in a free and democratic society based on human dignity, equality and freedom. A central feature of the Charter is the requirement that from January 1 2008 all Victorian legislation must be interpreted and applied consistently with human rights. While the Charter was not in force when the decision in this case was made, the court believed that the nature of our society and its values, which are refl ected in the Charter, should be taken into account when legislation, such as the Serious Sex Offenders Monitoring Act 2005 (Vic) in this case, is being interpreted and applied.

This was a complaint of discrimination in education brought under the Disability Discrimination Act 1992 (Cth). The Human Rights and Equal Opportunity Commission (HREOC) intervened to make arguments based on human rights before the court.

Hurst was a deaf child fluent in Auslan, a sign language. She complained that her school’s requirement that she be taught in English without an Auslan interpreter indirectly discriminated against her. Hurst’s complaint would be established if she could demonstrate the she could not comply with the requirement.

The court allowed Hurst’s complaint and held that Hurst had shown she would suffer serious disadvantage without an Auslan interpreter. The court considered that a disabled person’s inability to achieve their full potential in education amounted to serious disadvantage.

HREOC argued that the Disability Discrimination Act 1992 (Cth) should be interpreted and applied consistently with international human rights, including those set out in the International Covenant on Civil and Political Rights, the Declaration on the Rights of Disabled Persons, and the Convention on the Rights of the Child. HREOC said that the objects of the Disability Discrimination Act 1992 (Cth) include eliminating discrimination against persons on the ground of disability in education; ensuring that persons with disabilities have the same rights to equality before the law as the rest of the community; and promoting recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.

Under section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the applicants brought proceedings alleging that they were subject to racial discrimination between 1975 and 1986. The group of Aboriginal Australians were all employed on a Queensland reserve and pleaded that their rights under sections 9 and 15 of the Racial Discrimination Act 1975 (Cth) and the International Convention on the Elimination of all Forms of Racial Discrimination had been breached by the underpayment of wages. The claim was dismissed at trial but successful on appeal to the Full Court.