Living Well with HIV — a Human Rights

Living Well with HIV - a Human Rights Perspective Dr Helen Watchirs Human Rights & Discrimination Commissioner ACT Ministerial Advisory Council on Sexual Health, Hepatitis C & Related Diseases Stakeholder Forum, CIT 6 August 2009

Human Rights & Discrimination Commissioner Mandate - Promote understanding, acceptance & compliance with 1. Human Rights Act 2004, 2. Human Rights Commission Act 2005 & 3. Discrimination Act 1991 – about 100 complaints pa - Two other Commissioners handle: 1. health services (including privacy of medical records) 2. services for older people 3. disability services 4. services for children & young people - No HR complaints function, but inspection power under Corrections Management Act 2007 - S. 41(1) review/report on effect of laws to Attorney-General, eg HR Audits of Quamby (2005) & adult remand centres, BRC, STRC, PDC (2007). - S. 36 seek leave to intervene in courts/tribunals

Discrimination Act • Direct Discrimination: person treated unfavourably because of attribute • Indirect Discrimination: unreasonable condition or requirement that is imposed which has, or is likely to have, the effect of disadvantaging persons with an attribute • the attribute to have been only one of any number of reasons for unfavourable treatment • Exceptions, eg other laws, voluntary bodies • Exemption applications, eg Raytheon • attribute can be known or presumed, eg HIV • 3 elements: Unfavourable Treatment; Personal Attribute; & Public Life

Necessary elements: discrimination Protected attributes • disability including future disability • membership/non of an association of employers or employees • profession, trade, occupation or calling, eg sex work • race (including colour, descent, ethnic and national origin and nationality) • sex • Sexuality and transsexuality • status as a parent or carer, or relationship status • association Unfavourable treatment: • Detriment: loss, harm or damage • Sexual Harassment (offended, humiliated, intimidated) • Vilification - ‘public act’ that ‘incites hatred towards, serious contempt for, or severe ridicule of a person or group’: Emelyn-Jones v National Capital Press (1. 08. 09) need for reform • Victimisation (detriment)

Areas of public life • Education • Employment Agencies • Employment including: * Applicants * Employees * Commission agents * Contract workers * Partnerships • Qualifying bodies • Professional or Trade organisations • Unlawful advertising • Access to Premises • Goods, Services and Facilities • Accommodation • Clubs • Requests for Information

Complaint handling • • 1. 2. 3. 4. 5. Consider/investigate – all parties involved Natural justice, and not bound by rules of evidence Decision – issues raised under Act, without substance, or already been adequately dealt with etc Conciliation if appropriate; Refer to Administrative Review Tribunal (from 1 February 2009) Standard of proof: balance of probabilities - up to the complainant to support allegations; and up to the respondent to support claim to an exception Disability exceptions: genuine occupational qualification ability to perform the essential work of the job – X (HC) unjustifiable hardship - nature of benefit or detriment & disability; financial circumstances/expense general - special measures general - other laws

HIV & Human Rights • International Guidelines HIV/AIDS & Human Rights & UN Declaration of Commitment (2001) • Obligations to respect, protect, fulfil HR • UN HR treaties – mechanisms for accountability, eg reporting, complaints • Breaches can be by action/inaction of government • Not just rhetoric: realise in laws, policies, programs at local & national levels • Informing & capacity building – know rights and responsibilities: individuals & service providers/government • Public health & human rights complement/conflict

• • • Human Rights Act 2004 From 1 July 2004 laws to be interpreted consistently with human rights From 1 January 2009 ‘public authorities’ are required to act and make decisions consistently with human rights. Right of action to ACT Supreme Court for violations – remedies, eg declarations, not compensation generally. Section 10: ‘(1) No-one may be tortured or treated or punished in a cruel, inhuman or degrading way. (2) No-one may be subjected to medical or scientific experimentation or treatment without his or her free consent. ’ Section 19: ‘(1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. (2) An accused person must be segregated from convicted people except in exceptional circumstances’ (2) An accused person must be treated in a way that is appropriate for a person who has not been convicted Others – s. 8 equality, s. 11 family, s. 12 privacy, s. 14 religion/belief, s. 15 association, s, 16 expression and information, s. 18 liberty and security of person, . s. 26 freedom forced work, s. 28 minority cultures/languages

HIV criminal transmission offences • • • Stigmatises alienated groups, eg MSM, sex workers, injecting drug users. Scapegoats PLWHAs as potential criminals – harder to reach, fear confidentiality breaches, hide behaviour, reluctant to access services Focus on unpopular & vulnerable groups – false sense of security in general population (us v them). Media hysteria fuelled Coercion not very successful to control intimate, voluntary, private behaviour (eg sex, drugs). Behaviour - complex motivations eg denial Purpose of criminal law: retribution/punishment; deterrence; incapacitation; rehabilitation Criminal justice system – intrusive policing Mostly unintentional, not deliberate - majority unaware that HIV+ Law should not be a barrier to HIV-testing – cover negligent/reckless behaviour? Public health message – take responsibility for safe behaviour & HIV prevention undermined by blame: guilty/innocent HIV not curable like some STDs (forced treatment), but chronic illness Restrictions on living circumstances for serious recalcitrant cases (not just HIV status). Structured criteria: behaviour in past & likely to continue; counselling to change unsuccessful; danger to others - ‘real risk’ of transmission

Relevant UN Standards for Audit • • International Covenant on Civil & Political Rights (ICCPR) – rights to life, humane treatment in detention International Covenant on Economic, Social and Cultural Rights (ICESCR) – right to physical & mental health UN Convention Against Torture & Other Cruel, Inhuman & Degrading Treatment & Punishment (CAT) – new Optional Protocol Australia signed UN Basic Principles for the Treatment of Prisoners – P 9 ‘prisoners shall have access to the health services in the country without discrimination on the grounds of their legal situation’. United Nations Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment Standard Minimum Rules for the Treatment of Prisoners International Guidelines on HIV/AIDS & Human Rights (1996) UNAIDS & OHCHR – G 4 ‘prison authorities should provide prisoners with access to the means of prevention (condoms, bleach & clean injecting equipment)’ WHO Guidelines on HIV Infection & AIDS in Prisons – A(1) ‘all prisoners have the right to receive health care, including preventative measures, equivalent to that available in the community without discrimination…’ and P 24 ‘consideration should be given to providing clean injecting equipment during detention & on release to prisoners who request this’.

HR Audit Recommendations 1. 2. 3. 4. 5. 6. 7. Urgent matters – overcrowding; mental health care; time-out of cells (many ‘lockdowns’ in 2006/07); and organised activities Humane treatment – cells; searches (eg strip – half body), drug testing; welfare; education; work; clothing; hygiene; contact; legal advice; media and library; information about rights Health care – services; infection control and harm minimisation; general health (equivalence, allied health, dentistry, external consults and hospitals, medical records); limits on use of restraints in hospitals; prisoners at risk Oversight - monitoring Systemic discrimination – sensitivity to special needs of women & minorities; indigenous people; culturally and linguistically diverse populations; interpreters; cultural activities; protection detainees; religion; food Corrections Culture – training de-escalation & anti-bullying, records Monitoring custody rates – ATSI, research PDC, review fine default

Infection control & harm minimisation issues • • NSPs opportunity to include safer sex education & means (eg condoms, dental dams) harm minimisation approach protects the rights to life & health. denying protection against disease transmission in high-prevalence and closed population in prison may be viewed as inhumane. ; ‘equivalence’ - ACT community-based needle & syringe programs; numerous studies have demonstrated the efficacy of exchanges in communities around the world, as well as prisons in some countries. Evaluations of NSPs show reduction of needle sharing and infections, and do not increase drug consumption or demand; contraband drugs expected and found in ACT - dependence on drugs or alcohol high, as well as mental disorders duty of care to detainees – NSW negligence action in mid-1990 s regarding access to condoms led to reform returned to community as average short length of stay (eg 7 months)

Infection control and harm minimisation recommendations • ACT Government response: ‘policy does not support a needle & syringe exchange at this time. It is an ongoing matter for policy consideration’ (18 months after AMC opens June 2009, ie end 2010) • AMC pilot NSP program with provision for safe disposal of needles, or safe injecting room (medically supervised injecting facility). • Detainees must regularly be provided with information about the availability of condoms and other safeguards, as well as safe sex practices, in order to prevent sexually transmitted infections and diseases such as HIV/AIDS and Hepatitis B and C • In addition to installing a condom-dispensing machine, adequate means for disposing of condoms should be provided. A dispensing machine for latex gloves and dental dams should be provided for women at the AMC, along with adequate means of disposing of them.

The Future - AMC opportunity & investment - unique opportunity for human rights compliant prison with focus on rehabilitation treat people with respect & dignity • NSP partnership experts (eg public health, drug & alcohol), community & government • Federal Ministerial Advisory Council (MACBBVS) role – encouraging inclusion of human rights expert • UNAIDS 2009 World AIDS Day theme ‘Human Rights’ • Federal consultation on Bill of Rights Public Hearings: 1 -3 July 2009 Parliament House. Report in September 2009. • Survey as reluctance to self-disclosure is an indicator of the extent of stigma. Anti-discrimination laws focus on public acts of government and private bodies, but private acts such as relationships may be indirectly affected through a legal environment that sensitizes public opinion, and exposes stereotypes and scapegoating. As Martin Luther King said, laws against discrimination cannot change the hearts of men, but they can restrain the behaviour of the heartless.