Stan Winford, Legal Projects Officer, Fitzroy Legal Service

It may be difficult to give a comprehensive account of what the Victorian Charter of Human Rights and Responsibilities will mean for the AOD sector in the coming months and years, and it is almost impossible to do so in brief and without resorting to 'legalese'. Nonetheless, it's probably worth starting by pointing out what it won't mean. Some of the common expectations are that it will allow individuals to go to court, US-style, and sue for compensation claiming that their human rights have been violated. To have legislation declared invalid and struck down by the courts - it won't allow this.

The way in which the Charter will affect this sector - service users, service providers and government agencies alike - will be something more akin to a gradual sea-change. The gradual sea-change will occur as a result of the paradigm shift of language and thinking about drugs and alcohol and how to deal with them in our community. The Charter is based on a dialogue model of human rights, which means that while government action and the actions of 'public authorities' will be subject to scrutiny based on their compliance with a human rights framework, there is no overriding power for courts to impose particular changes.

The Charter means that the human rights implications raised by a particular policy, program or issue can now be considered within a consistent set of standards regarding what is expected of government and agencies carrying out functions 'of a public nature', which in many cases will include AOD services, particularly those funded by government. The Charter will require that human rights are accorded consideration and attention in the development of policies, and will provide a clear way of assessing whether particular departures from human rights can - or cannot - be justified.

Under the Charter, rights are not absolute: they may be restricted where reasonable and necessary and often balanced against competing rights. The benefit of this new approach for policy making is that, firstly, human rights are explicitly considered when forming policies to deal with drug and alcohol treatment and laws concerning the regulation of drugs, but it also allows the best possible decisions about these policies to be made. While a previous government considering legislation that would enable the commitment of people for involuntary or coerced drug treatment would probably have thought about these sorts of issues, they will now explicitly be required to make such legislation compatible with the human rights of the person who may be treated involuntarily.

Using the Charter to help make these decisions will also lead to the development of knowledge and experience across public authorities and agencies charged with implementing laws and policies to do with drugs and treatment. They will come to understand what types of issues might give rise to human rights concerns, and how those concerns might be then addressed in the development, design and implementation of policies, services or laws.

What does all of this mean in practical terms? An important point to note at the outset is that the Charter means quite different things for different groups in the sector. For drug users, it may mean greater observance of their rights by public authorities, in ways that lead to less explicit discrimination, stigma and social exclusion. For drug user groups and advocates, it may be another means of advocating on behalf of their constituents and peers to call for an end to discrimination for instance in the provision of OST by pharmacists, or to call for an end to particular laws or practices that undermine the effectiveness of harm reduction strategies.

Human rights provide a framework for assessing and moderating the impact of legislation, policies and practices on the interests of a range of often marginalised groups whose voices can be absent from, or drowned out in an environment where other values or needs often take precedence: whether budgetary, administrative, bureaucratic or crisis-driven.

For services and government, the Charter clearly means increased obligations: to comply with the rights in the Charter, and more explicitly, to take them into account both in what they do and in how they operate. It might mean that public authorities such as Victoria Police - who will now have a duty to promote and protect human rights as well us uphold the law - will think carefully before implementing enforcement or supply reduction strategies that result in the exclusion of users from geographic areas and therefore disrupt access to treatment services or needle exchanges. The desire to reduce supply or demand will have to be appropriately limited by upholding the right to health for drug users. The police may also begin to think about the use of public searches of individuals that don't appropriately take into account the right to privacy, the right to health and the additional harms such a search might cause.

When government considers how to allocate money across programs and services, a human rights framework could lead to shifts in focus across supply, demand and harm reduction strategies.

For services involved in developing and delivering drug treatment, the Charter will require human rights to be respected and protected. Some of these rights include:

These considerations must inform the types of programs that are undertaken and the procedures and regulations that govern their operation. For a primary health centre considering whether to ban someone from the service, the Charter may impose an obligation to provide a fair process, one that includes a right to be heard, the provision of reasons and an avenue of appeal.

Finally, what's the point of all this? Apart from getting a handle on the new compliance obligations, why should we do it? One of the main reasons is that it works. When taken into account early in policy making processes or in the design and provision of services, human rights tend to generate policies and services that ensure reasonable objectives are achieved by fair and just means. Good policies and services contribute to social cohesion, which is in turn an important aspect of the promotion of health and well-being. Policies or services which respect and reflect human rights are more likely to be inclusive and of good quality. And that's surely a change for the better.