Indefinite incarceration - human rights at work in NSW

Since the enactment of UK Human Rights Act in 1998, decisions have been made that have relevance for forensic patients in NSW. For example, an eight-week time frame to process a patient’s application for review was found to be not fast enough to constitute a “speedy review” as guaranteed by the European Convention on Human Rights. In NSW, although patients are guaranteed a similar “speedy review” under the ICCPR, it sometimes takes a year or more for a minister to review a forensic patient’s case - a Charter of Rights could change this.

Executive discretion was abolished in the UK after the 1980 European Court of Human Rights decision, X v United Kingdom, held that the UK tribunal could not merely act as an advisory body to a minister, but must also have the power to discharge patients. The UK Human Rights Act ensures that the principles of the European Convention are part of UK law. Likewise, a charter would raise the status of human rights principles in NSW law.

Another important benefit of a charter, as legal academic George Williams argues, would be is its role in encouraging the community to “start a new conversation” about human rights. To be effective, a charter would need to reflect community values, and be developed through a process that encourages discussion about what rights are important and how they should be protected. Mental health consumers would become aware of their rights and more empowered in ensuring the government protects them.

The NSW Charter Group, a coalition of individuals and organisations in support of a NSW Charter of Rights, presents a way forward.

The group is seeking widespread community consultation on how best to protect and promote human rights, including whether or not NSW should adopt a charter, and if so, what it should include and how it should work. Following the community consultation, the group will call on government to adopt human rights protection consistent with community views.

To be part of this conversation, you can:

• join the NSW Charter Group and learn more; and
• contact your local member and other NSW Members of Parliament in support of a NSW Charter of Rights.

Having this conversation can educate, shape community attitudes and bring hope and “a voice” to people who are otherwise silenced by the political system.