A Human Rights Act and older people

OPAN National Older Persons Reference Group

Emeritus Professor Rosalind Croucher AM FAAL FRSA FACLM(Hon)

Abstract

The presentation will focus on the Commission’s proposed model for a Human Rights Act in Australia and how it may support the rights of older people.

Introduction

[Thank you to organisers….]

I would like to begin my contribution by acknowledging the traditional custodians of this land, and to pay my respects to the elders, past, present and emerging, of the Gadigal people of the Eora nation and I also acknowledge any Indigenous guests in the audience today. 

In my presentation today, I will be speaking about human rights in the context of older people and about the Australian Human Rights Commission’s proposals for reforming the landscape of human rights protections in Australia.

I bring into my role at the AHRC and this discussion my experience at the Australian Law Reform Commission, leading an inquiry into Equality, Capacity and Disability in Commonwealth Laws and another into Elder Abuse. I also bring my lived experience as an older woman and as a carer for my parents in their last years. (Mother passed away in September 2019, just two weeks shy of her 98th birthday, and I lost my darling father last year, in April, having celebrated his 100th birthday on 30 December a few months before, in the height of COVID in Sydney.)

I will begin with a story about my father.

[Went into aged care for respite, (bullied by one of my sisters) in June 2021, and got stuck as COVID enveloped Sydney. He was fully compos, but very frail. He made the decision to stay. On one level it broke my heart, but on another, I understood his recognition of his own frailties and his need for more support.  What made a difference to me was my observation of his conversation with the GP who attended to all the residents. First, I should say, father asked me to remain. Dr Walker (I am happy to name him) then spoke to father, not to me. It was a most respectful conversation: dignified, deferential, and very attentive. This was a human rights based approach.

The Commission’s Free and Equal work

In March this year we launched our model for a Human Rights Act at the federal level. It is part of a project I have been leading at the Australian Human Rights Commission.

In December 2018, I threw out a ‘sky anchor’, as I called it, on International Human Rights Day, in announcing the Free and Equal national conversation, to reimagine Australia’s framework of protections of human rights and freedoms. 

The title was drawn directly from the first sentence of the first article of the Universal Declaration of Human Rights – the one that Mrs Mehta has such a important role in – ‘All human beings are born free and equal in dignity and rights’. 

The project’s final outputs include two position papers on key reform priorities, discrimination law reform (December 2021) and a model Human Rights Act for Australia (March 2023), and a final report – to mark the 75th anniversary of the UDHR. 

Our proposals for an Australian Human Rights Act seek to complete the central, missing piece of our domestic legislative framework for the promotion and protection of human rights in Australia – by bringing rights home. It will also complete the intended design of the Australian Human Rights Commission itself – the ‘hole in the doughnut’ of our institutional legislative architecture. And by enacting a Human Rights Act in Australia we will catch up with every other country in the Commonwealth of Nations by introducing comprehensive human rights protections in domestic legislation. 

In our Position Paper, we conclude that the existing mechanisms are insufficient and do not provide the human rights protections that all people in Australia are entitled to. 

Our experience with Royal Commissions into Robodebt, and the abuse experienced by persons with disability and in aged care, have exposed egregious human rights breaches, and shown how our existing systems are not adequate. 

They are also costly. For example, it has been estimated that the Royal Commission into Aged Care will cost the Australian Government $104 million over four years;^[1] and the Royal Commission into Violence, Abuse and Neglect and Exploitation of People with Disability will cost $527 million.^[2]

A Human Rights Act may not lead to perfect results, but it would help us make better decisions. It would provide the bedrock of right upon which policies, laws, and decision-making are framed. The need for better human rights protections in Australia can be summarised by one simple proposition: we should have proper protection of human rights at the national level because everybody’s human rights matter, all the time.

To do so requires that human rights are embedded within the laws of our country, so that they have practical effect for individuals, and are consistently and coherently applied by government. A Human Rights Act would ensure that the rights and freedoms that Australians rightly expect to be – and assume are –protected,^[3] are in fact protected.

Two states and one territory in Australia now have Human Rights Acts. They have made valuable contributions to the law, policy and decision-making processes in those jurisdictions. 

Our Position Paper offers a clear and concrete set of proposals to implement a Human Rights Act federally. It is tailored to the unique legal framework at the federal level and would complement the existing human rights protections in two states and one territory. 

Our model is based on:

• a positive duty on public authorities – to act compatibly with human rights and consider human rights when making decisions
• enhanced parliamentary scrutiny
• a comprehensive implementation of human rights, not limited to the ICCPR
• interpretive provisions that align the understanding of human rights to the international jurisprudence, and
• the existence of remedial pathways, at the Commission, in administrative law and the courts.

The beauty of a Human Rights Act, and other measures that frontload rights-mindedness, is that they are expressed in the positive – and they are embedded in decision making and ahead of any dispute and they provide a way of resolving intersections of human rights through a proportionality framework. 

A Human Rights Act names rights; it provides an obligation to consider them and a process by which to do it – together supporting a cultural shift towards rights-mindedness becoming part of the national psyche, not just an afterthought.

The Human Rights Act model would build on the experience of complaint handling of the Commission over 40+ years and address the weaknesses of the current scheme. It would provide a pathway to enforceable remedies, and, in that way, substantially improve access to justice and accountability for government decision making through the positive duty on public authorities. It would provide a greater incentive to think about human rights early, when decisions are made, and before they become complaints. It would be an evolution, not a revolution in our ability to handle and respond to complaints.

Implications in the context of aged care

Our model’s Participation duty in an aged care context would require older persons to have free and meaningful participation in decisions affecting their rights and about their care, for example in aged care. Information must also be accessible, and mechanisms put in place to enable participation.

The Royal Commission into Aged Care found that the aged care system fails to meet the needs of its older, vulnerable, citizens. It does not deliver uniformly safe and quality care, is unkind and uncaring towards older people and, in too many instances, it neglects them.^[4] This is especially of concern given that almost 88% of people living in aged care facilities have a physical disability and 73% have a psychosocial disability.^[5]

The report presents a range of testimonies from witnesses whose experiences ranged from access to medical and dental care, and physiotherapy, to difficulties receiving the correct medication, difficulties with medication management, struggles with appropriate continence care, social isolation, bland food, and the use of chemical and physical restraints.^[6] They described dismissive attitudes by staff to their experience of intense pain.^[7]

How would a Human Rights Act make a difference in such situations?

Aged care is a federal responsibility under the Constitution, which is a start.

The positive duty is at the centre of the Human Rights Act. It requires public authorities^[8] to act compatibly with the human rights expressed in the Human Rights Act an to consider human rights in making decisions. The positive duty can result in a transformative cultural shift within government and make rights protection a core part of government business. 

The British Institute of Human Rights explained the role of the positive duty in the UK in instituting a human rights culture across the public service:

A human rights culture is one that fosters basic respect for human rights and creates a climate in which such respect becomes an integral part of our way life and ad reference point for our dealing with public authorities. …The building of a huma rights culture … [depends] not just on courts awarding remedies for violations of individual rights, but on decision makers internalising the requirements of human rights law, integrating standards into their policy and decision-making processes, and ensuring that the delivery of public services in all fields is fully informed by human rights considerations.^[9] 

A Human Rights Act would support decision makers to consider human rights in a way that is more appropriate to individual circumstances, rather than taking an inflexible, blanket approach to administration. It would protect against arbitrary or unfair decision making and would provide a clear and accessible pathway for considering breaches of rights, for instance, where the use of restrictive practices has occurred or where specific religious and cultural needs have been ignored.^[10] 

I want to illustrate the idea of acting compatibly with human rights through the lens of ‘ageism’. One aspect of ‘rights mindedness’ is to address unconscious biases. Ageism is one of the lesser known – and most pernicious – ‘isms’ to address. Simple measures can make a big difference.

Recall Dr Walker. Speaking to my father directly. A failure to do so – speaking to a carer or a supporter – is a phenomenon that would be familiar to you – across disability and older people’s sectors.

A human rights focus in an aged care context would require older persons to have free and meaningful participation in decisions affecting their rights and about their care, for example in aged care. Information must also be accessible, and mechanisms put in place to enable participation.

Last week, on 13 July, the Age Discrimination Team published a new report with important findings that show a brief, one-off training session on ageism can be a powerful tool in creating positive changes in attitudes and behaviours towards older people. This type of training should be aimed at government and industry including aged care workers in particular. This recommendation is quite a practical one that can be put forward under the Human Rights education pillar within our framework. 

The draft Human Rights Act proposed by the AHRC contains specific references to the rights of children, the rights of women, the rights of persons with disabilities and the rights of Indigenous peoples. It is no accident that each of these areas is covered either by a thematic UN convention (in the case of children, women and persons with disabilities) or a widely supported normative instrument the UN Declaration on the Rights of Indigenous Peoples (in the case of Indigenous Peoples, who are also covered by the Racial Discrimination Convention), while the human rights of older persons, specifically, who are not covered by a thematic convention, are not. Some would argue, as the Australian government has to date, that the other conventions are enough. But where are the recommendations, the voluntary commitments, that speak about the rights of older people? They are absent.

The Commission’s proposed Participation Duty would ensure that people with disability and their representative organisations participate in the co-design, or at the least be actively engaged in, decisions around design, development, and implementation of National Preventive Mechanisms (NPMs) across Australia. 

It is vital that the voices, expertise, and experiences of people with disability are incorporated into NPMs – including in their standards, mechanisms, inspection teams and monitoring efforts. This requires significant consultation with the relevant bodies and people with disability, which to date has not meaningfully occurred.^[11] Not all older people are included.  Many are, but not all.  They are distinct cohorts of people – and with increasing vulnerabilities.

The positive duty has made a difference in the states and territories with a Human Rights Act. 

In the UK, there are a myriad of examples where the UK Human Rights Act has been raised directly with authorities and assisted campaign areas, including: tackling abuse and neglect in health and care.

The HRA has been used to secure better treatment for people in care homes. This has largely been based on the prohibition on inhumane and degrading treatment, and respect for privacy, and has ‘forge[d] a new set of obligations to the aged’.^[12]

Practical changes have occurred through: 

• human rights issues being raised early with public authorities and used as a tool to achieve changes to policies and practices without needing to go to court  
• a human rights-based approach being adopted by the Care and Quality Commission, which regulates care homes  
• case law setting important precedents (this is only possible where you have an actionable cause of action attached) 
• systemic own-motion reports made by the Equality and Human Rights Commission that have brought attention to problematic practices. 

Some examples come from case studies collated by the British Institute of Human Rights (BIHR).^[13]

Tilt-back chairs

An NHS nursing home in London had a practice of routinely placing residents in special ‘tilt-back’ wheelchairs, regardless of their mobility needs. As a consequence, residents who were able to walk unaided were stopped from doing so. This had a severe impact on their ability to make choices about everyday activities, as well as their capacity to feed themselves and use the bathroom. A consultant pointed out to staff that their failure to consider the different mobility needs of individual residents was contrary to human rights principles. She drew particular attention to the right to respect for private life,^[14] which emphasises the importance of dignity and autonomy, and the right not to be treated in a degrading way.^[15] The blanket practice was stopped as a result. Residents who could walk were taken out of the chairs and encouraged to maintain their walking skills. 

Double bed

A woman with a disability was told by her occupational therapy department that she needed a special (‘profile’) bed. She was unable to leave her bed and this new arrangement would allow carers to give her bed baths. She requested a double bed so that she could continue to sleep next to her husband. The authority refused her request, even though she offered to pay the difference in cost between a single and double bed. A stalemate ensued for 18 months until the woman was advised by the Disability Law Centre to invoke her right to respect for private and family life. Within three hours of putting this argument to the authority, it found enough money to buy the whole of her double profile bed. Writing to Disability Now, the woman explained that ‘It has made a phenomenal difference to my life. If something similar happened in future, I would have no hesitation in using the [Human Rights Act] again’. 

Couple with disability

A couple in the UK were living in an assessment centre so the Department of Social Services could examine their parenting skills. The couple both had learning disabilities. CCTV cameras had been installed, including in their bedroom. Social workers explained that the cameras were there to observe them performing their parental duties and for the protection of their baby. With the help of an advocate, the couple used the UK’s Human Rights Act to challenge the use of the cameras. They said that the Department had not given proper consideration to their right to family and private life. The couple explained that they did not want their intimacy to be monitored. Besides, the baby slept in a separate nursery so it was not necessary to monitor the couple in their bedroom at night. As a result, the Department agreed to switch off the cameras during the night so that the couple could enjoy their evenings together in privacy.

Gay man with disabilities

A physical disabilities team at a local authority had a policy of providing support to service users who wanted to participate in social activities. A gay man asked if a support worker could accompany him to a gay pub. His request was denied even though other heterosexual service users were regularly supported to attend pubs and clubs of their choice. During a BIHR training session, the man’s advocate realised that the man could invoke his right to respect for private life and his right not to be discriminated against on grounds of sexual orientation to challenge this decision. 

I want to finish with a final conversation I had with Dr Walker.

Fall, scan. Etc.

Endnotes

[1] Sarah Scopelianos, ‘The Royal Commission into Aged Care Quality and Safety explained’, ABC (online), 11 February 2019 <https://www.abc.net.au/news/sarah-scopelianos/6806558>.

[2] Rosemary Bolger, ‘It’s not flash being disabled’: PM launches $527 million disability Royal Commission’, SBS News (online), 5 April 2019 < https://www.sbs.com.au/news/article/its-not-flash-being-disabled-pm-launches-527-million-disability-royal-commission/wt11e0a3k>.

[3] More than half of Australians believe we already have a national Human Rights Act: ‘Australia’s Human Rights Barometer: Overwhelming support for a Human Rights Act’ Amnesty International (Web Page, 16 August 2021) <https://www.amnesty.org.au/australias-human-rights-barometer-overwhelming-support-for-a-human-rights-act/>.

[4] Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect, Volume 4A Hearing overviews and case studies (March 2021) <Aged Care Royal Commission Final Report: Care, Dignity and Respect - Volume 4A >. 

[5] See Australian Bureau of Statistics, A Profile of People Living in Residential Aged Care in Australia (Information Sheet, 2018) p.1.

[6] Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect, Volume 4A Hearing overviews and case studies (March 2021) <Aged Care Royal Commission Final Report: Care, Dignity and Respect - Volume 4A>.

[7] Royal Commission into Aged Care Quality and Safety, Final Report: Care, Dignity and Respect, Volume 4A Hearing overviews and case studies (March 2021) p.63 <Aged Care Royal Commission Final Report: Care, Dignity and Respect - Volume 4A>.

[8] We define functional public authorities as including private businesses, nongovernment organisations and contractors that have functions of a public nature and are exercising those functions on behalf of government. Examples of functional public authorities at the federal level would include a private company operating a federal prison; a private service provider delivering services through the NDIS; and a private government contractor providing housing to those at risk of homelessness.

[9] British Institute of Human Rights submission to the Joint Committee on Human Rights,  Independent Review of the Human Rights Act, March 2021 <https://www.bihr.org.uk/Handlers/Download.ashx?IDMF=6efd6aef-3bc3-4c75-867c-d744ede5d0c9>.

[10] Royal Commission into Aged Care Quality and Safety, Summary of the Final Report (March 2021).

[11] Australian Human Rights Commission, Submission to the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability 5 April 2019 < https://humanrights.gov.au/our-work/disability-rights/projects/royal-commission-violence-abuse-neglect-and-exploitation-people > ,

[12] See Conor Gearty, On Fantasy Island (OUP, 2016) ch 10.

[13] Extracted from: Sanchita Hosali, ‘Poor practice in care homes: how the Human Rights Act helps protect us’ BIHR Blog; ‘Hartlepool’s Admiral Court Care home ‘disregards humanity’, CQC says’, BBC News (17 June 2015) < https://www.bbc.com/news/uk-england-tees-33153031 >. 

[14] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, Article 8, available at: < https://www.refworld.org/docid/3ae6b3b04.html >. 

[15] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, Article 3, available at: < https://www.refworld.org/docid/3ae6b3b04.html >.

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