Managing Complaints Involving Human RightsDate posted:
Public organisations are required to consider people's human rights when delivering services and drafting policies. This guide will help you deal effectively with complaints involving human rights.
Victoria has a proud history of advancing human rights and striving to eliminate unfair discrimination. In 2006, Victoria became the first state to legislate for the protection of human rights, by introducing the Charter of Human Rights and Responsibilities.
Public service bodies deliver many important services to the community that can affect people’s rights. The protection and promotion of human rights is key when providing services such as corrective services, police and emergency services, education and health care.
There are times where citizens are not wholly satisfied with the services they receive. At such times, there needs to be an effective process to ensure that complaints are responded to quickly and appropriately.
It is important that public sector employees consider a person’s human rights not only when delivering services and programs, or drafting legislation and policies, but also when managing complaints. Attention to human rights encourages focus on the impact a decision-maker’s decision will have on the person, and ensures that they are mindful of people’s rights and the Charter’s values of freedom, respect, equality and dignity. These values are fundamentally important and they reflect what each individual expects when they engage with public sector employees.
The Charter has been instrumental in building a human rights culture in Victoria, especially within the Victorian public sector. But there is more work to be done. In taking a human rights approach to complaints, public sector employees will be helping to strengthen a human rights culture in Victoria.
I thank the Victorian Ombudsman, the Victorian Equal Opportunity and Human Rights Commission and the Independent Broad-based Anti-corruption Commission for their valuable contribution to the Guide, given their responsibilities under the Charter and their expertise in managing complaints.
Department of Justice & Regulation
The Charter of Human Rights and Responsibilities Act 2006 (the Charter) is an Act of the Victorian Parliament that sets out the rights and freedoms shared by everyone in Victoria and protected by law. The rights and freedoms in the Charter include, for example, the right to equality and nondiscrimination, protection from cruel inhuman and degrading treatment, the right to liberty and security, privacy rights, property rights, freedom of association and freedom of expression.
The Charter promotes a culture where people working in state and local government protect and consider everyone’s human rights in service delivery, policy, decisions and legislation.
Human rights under the Charter apply to all people in Victoria and at all times; they are not limited by citizenship.
The Charter requires laws to be interpreted, where possible, to be compatible with human rights. The Charter requires new legislation to be introduced with a Statement of Compatibility that shows how the legislation is compatible with human rights. The Charter requires all public authorities (state and local government and associated agencies) to act compatibly with human rights and make decisions that give proper consideration to human rights.
Victoria and the Australian Capital Territory are the only Australian jurisdictions to have rights protected in this way – but the Charter does not stand alone. Along with other laws that protect people’s human rights (such as the Equal Opportunity Act 2010 (Vic)), the Charter is part of a broader framework of human rights protections, including Australia’s legal obligations under key international human rights treaties.
The values in the Charter are also reflected in the Public Administration Act 2004 (Vic) and the Code of Conduct for Victorian Public Sector Employees. This means that public sector employees should respect and promote the human rights in the Charter as a condition of employment.
The Human Rights Unit of the Department of Justice & Regulation (DJR) has drawn on the expertise of the Victorian Ombudsman, the Independent Broad-based Anti-corruption Commission (IBAC) and the Victorian Equal Opportunity and Human Rights Commission (VEOHRC), and together produced this guide to help you to effectively deal with complaints about human rights.
This guide is intended to inform, complement, be incorporated into, or be read in conjunction with your organisation’s own complaint handling procedures. It is good practice to have a transparent, accessible, responsive complaints process.
An effective human rights culture in Victoria is not just about managing complaints. It is also about public authorities taking a human rightsbased approach to their work. Not only so that you might uphold and reinforce human rights, but also to reduce the likelihood of a human rights complaint being made in the first place. It is also about creating a culture that embeds the respect and protection of human rights as a core workplace value.
2. Responsibilities under the Charter
2.1 Is my organisation covered by the Charter?
The Charter imposes an obligation on all ‘public authorities’ to act compatibly with human rights. The term ‘public authority’ applies broadly to state and local government and other bodies exercising functions of a public nature, including:
- every department and public servant
- local councils, including councillors and council staff
- statutory authorities that perform a public function (such as VicRoads and WorkSafe)
- entities that are not part of government, but perform functions of a public nature on behalf of government (these might be private sector organisations, such as private prisons, or a community organisation contracted by the Victorian Government)
- Victoria Police
- public boards (such as water boards)
- courts and tribunals when they are acting in an administrative capacity.
2.2 Responsibilities under the Charter
To comply with the Charter, public authorities must:
- act compatibly with human rights; and
- give proper consideration to relevant human rights when making decisions.
It is unlawful for a public authority to act in a way that is ‘incompatible’ with human rights. ‘Acting’ includes a failure to act.
An action is incompatible with a human right if it unreasonably limits a person’s enjoyment of that right.
Whether a limitation on a person’s rights is reasonable depends on whether the limitation is a proportionate response to the issue. This is discussed further in Part 5.5.
Similarly, a public authority will not have acted unlawfully if, as the result of another law, it could not have reasonably acted differently or made a different decision.
Giving proper consideration
The Charter also says that public authorities must properly consider relevant human rights when making decisions. ‘Proper consideration’ means:
- understanding in general terms which rights might be relevant
- understanding whether those rights will be interfered with by the decision, and if so, how
- seriously turning your mind to the possible impact of the decision on a person’s human rights and how this might affect the person • identifying other, possibly opposing interests or obligations that will need to be balanced in your decision
- balancing competing private and public interests.
You do not need to refer to a relevant Charter right by name or section number, or in a legalistic way, as long as the right is understood and considered in substance.
3. Roles under the Charter
Several organisations are helping to build a human rights culture across state and local government.
Their roles are:
Human Rights Unit (Department of Justice and Regulation): provides policy advice and training to government on the Charter.
Victorian Equal Opportunity and Human Rights Commission: provides education, training and advice to state and local government, and may intervene in proceedings involving the Charter.
Victorian Ombudsman: investigates whether public authorities' actions and decisions are compatible with human rights.
IBAC: exposes and prevents public sector corruption and police misconduct and ensures Victoria Police officers have regard to the Charter.
3.1 Human Rights Unit of the Department of Justice & Regulation
The Department of Justice & Regulation’s Human Rights Unit is the central point for information and resources on the Charter within the Victorian Government. Its main role is to provide advice and support to staff across the Victorian Public Sector (VPS) about the human rights impacts of policy and legislation. It has led and coordinated the preparation of this Guide.
The Human Rights Unit supports all Victorian departments to understand the Charter’s requirements and to ensure that human rights are a consideration in all areas of government policy and legislation, decision-making and service delivery.
The Human Rights Unit also assists the Attorney-General in Charter proceedings before the Victorian courts, and helps coordinate Victoria’s contribution to Australia’s reporting under various international human rights conventions.
The Human Rights Portal provides information about the Charter. The Human Rights Unit and the Victorian Government Solicitor’s Office jointly manage the The Human Rights Unit can provide advice on whether a complaint raises human rights, or whether an issue may fall within a particular right.
3.2 The Victorian Equal Opportunity and Human Rights Commission
The Victorian Equal Opportunity and Human Rights Commission is an independent statutory body with responsibilities under the following laws:
- the Charter
- the Equal Opportunity Act 2010
- the Racial and Religious Tolerance Act 2001.
VEOHRC aims to create a community where every person values, understands and respects human rights and equal opportunity. To achieve this vision, VEOHRC works with others to eliminate discrimination and build a community that respects and promotes human rights and equal opportunity.
VEOHRC’s role under the Charter is that of an ‘independent monitor’. In practice this means VEOHRC does the following to help protect and promote human rights:
- provides advice on the Charter via an enquiry line to both community and public authorities
- provides education and training services on Charter rights and responsibilities
- intervenes in court or tribunal proceedings to provide an expert view on questions of law relating to the Charter
- prepares an annual report on how the Charter is operating in practice
- conducts reviews for public authorities on programs and policies to ensure compatibility with the Charter
- operates the VPS Human Rights Network and publishes resources on how to build a human rights culture
- advises the Attorney General on anything relevant to the operation of the Charter.
The Charter reflects the fundamental values we want to see protected and promoted in our community.
Complaints prompt us to question whether we could do things better. From a human rights perspective, they are a critical point for you to check whether your organisation is promoting and protecting human rights. They allow you the opportunity to make a positive difference and to help us build a strong human rights culture in Victoria.
I encourage you to consider and incorporate key aspects of this Guide into your own complaints handling policies and procedures. You are also welcome to contact the Commission for information about how the Charter operates in practice.
Victorian Equal Opportunity and Human Rights Commissioner
3.3 The Victorian Ombudsman
The Victorian Ombudsman is a constitutionally independent officer of the Parliament. The office operates in accordance with the Ombudsman Act 1973.
The introduction of the Charter provided the Ombudsman with the express function to ‘enquire into or investigate whether administrative action is incompatible with a human right’. An ‘administrative action’ includes an action or decision, failing to take an action or make a decision, or formulating a proposal or recommendation.
A lot of what people know about the Ombudsman is based on the investigation reports tabled in Parliament. This is only a fraction of what the office does.
The Ombudsman’s purpose is to ensure fairness for Victorians in their dealings with the state’s public sector, to improve public administration and protect human rights. The Ombudsman’s role in relation to human rights involves:
- taking complaints from the public about State Government departments, statutory authorities and local councils (and private contractors acting on behalf of those bodies)
- making enquiries and resolving complaints informally where possible
- investigating when needed and making recommendations for change
- examining systemic problems in public administration (‘own motion’ powers)
- promoting best practice in public administration through good practice guides and education workshops
- sharing complaint information with authorities to improve their administrative practices
When conducting enquiries or investigations, the Ombudsman has regard to human rights principles contained in the Charter, in international law, and in the judgments of domestic, foreign and international courts and tribunals. The Ombudsman may, form an opinion that a decision or action is ‘unlawful’, ‘unreasonable’ or ‘wrong’ where it does not meet the minimum standard established in the Charter or in an international human rights instrument.
Most of the Ombudsman’s work takes place in private, however, the Ombudsman can decide to make it public in some circumstances.
Respect for human rights is an essential element of a modern democracy and it is the responsibility of every Victorian public servant to uphold the principles expressed in the Charter.
Since its Swedish origins over 200 years ago, the role of an Ombudsman has been to independently investigate complaints about the actions of government agencies and make recommendations for improvement. In doing this, an Ombudsman investigates issues of an overtly human rights nature – from the denial of public housing or education, to the treatment of people in closed environments.
Complaints are free feedback to government about how someone thinks it is doing its job, and using the Charter as a tool to enable, respond to, and learn from those complaints will assist you to protect the human rights of the community you serve.
I encourage all state and local government leaders to learn to love their complaints, and to use this Guide to promote best practice and respect for human rights within their agencies.”
3.4 The Independent Broad-based Anti-corruption Commission
The Independent Broad-based Anti-corruption Commission is responsible for identifying, exposing and preventing corrupt conduct across the public sector. It has jurisdiction for corrupt conduct involving state government, local councils, parliamentarians, the judiciary and contractors performing a public function.
IBAC also has a broad oversight role in relation to Victoria Police.
As part of this role, IBAC has a legislative function to ensure Victoria Police officers have regard to the Charter.
All complaints and notifications received by IBAC relating to Victoria Police are assessed to determine whether the matter should be investigated by IBAC or referred to Victoria Police for action, or dismissed. The assessment process involves considering whether a person’s Charter rights might have been breached.
The identification of potential Charter rights breaches is an important factor IBAC considers when determining whether a matter should be investigated by IBAC, or if IBAC should review a matter it has referred to Victoria Police for investigation.
IBAC can conduct an investigation as a result of a complaint, or initiate its own investigation (own motion).
IBAC has the power to apply for search warrants to enter premises and can search and seize documents. It can use surveillance devices and telecommunication intercepts to gather evidence. IBAC also has the power to summons witnesses and conduct examinations.
Police hold significant powers that can be exercised over their fellow citizens. The exercise of these powers can be vulnerable to misuse, adversely impacting on individuals and the Victorian community as a whole.
Independent, external oversight is critical to help ensure police act fairly, impartially and in accordance with the law. IBAC’s oversight is vital to support community confidence in police integrity and accountability.
Stephen O’Bryan QC
Independent Broad-based Anti-corruption Commissioner
4. Rights, freedoms and protections
The Charter sets out 20 rights, primarily adapted from the human rights set out in the United Nations International Covenant on Civil and Political Rights 1966. Australia became a party to this treaty in 1980.
A summary of the Charter’s rights follows.
The Charter protects:
The right to recognition and equality before the law (section 8)
Everyone is entitled to equal and effective protection against discrimination, and to enjoy their human rights without discrimination.
The right to life (section 9)
Every person has the right to life and to not have their life arbitrarily taken. The right to life includes a duty on government to take appropriate steps to protect the right to life.
The right to protection from torture and cruel, inhuman or degrading treatment (section 10)
People must not be tortured. People must also not be treated or punished in a cruel, inhuman or degrading way. This includes protection from treatment that humiliates a person. People must not be subjected to medical treatment or experiments without their full and informed consent.
The right to freedom from forced work (section 11)
A person must not be forced to work or be made a slave. A person is a slave when someone else has control over them.
The right to freedom of movement (section 12)
Everyone has the right to move freely within Victoria and to enter and leave it, and has the freedom to choose where to live.
The right to privacy and reputation (section 13)
Everyone has the right to keep their lives private. A person’s family, home or personal information cannot be interfered with, unless the law allows it.
The right to freedom of thought, conscience, religion and belief (section 14)
People have the freedom to think and believe in what they want, for example, practice a religion. They can do this in public or private, as part of a group or alone.
The right to freedom of expression (section 15)
People are free to have an opinion and say what they think. They have the right to find, receive and share information and ideas. This right might be limited to respect the rights and reputation of other people, or for the protection of public safety and order, public health or public morality.
The right to peaceful assembly and freedom of association (section 16)
People have the right to join groups or unions and to meet peacefully.
The right to protection of families and children (section 17)
Families are entitled to protection. Children have the same rights as adults with added protection according to their best interests.
The right to taking part in public life (section 18)
Every person has the right to take part in public life, such as the right to vote or run for public office.
Cultural rights (section 19)
People can have different family, religious or cultural backgrounds. They can enjoy their culture, declare and practice their religion and use their languages. Aboriginal persons hold distinct cultural rights.
Property rights (section 20)
People are protected from having their property taken, unless the law says it can be taken.
The right to liberty and security of person (section 21)
Everyone has the right to freedom and safety. The right to liberty includes the right to not be arrested or detained except in accordance with the law, and to be brought before a court promptly and tried without unreasonable delay.
The right to humane treatment when deprived of liberty (section 22)
People have the right to be treated with humanity and respect for their dignity if they are accused of breaking the law and are detained.
Rights of children in the criminal process (section 23)
A child charged with committing a crime or who has been detained without charge must not be held with adults. They must also be brought to trial as quickly as possible and treated in a way that is appropriate for their age.
The right to a fair hearing (section 24)
A person has a right to a fair hearing. This means the right to have criminal charges or civil proceedings decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
Rights in criminal proceedings (section 25)
There are a number of minimum guarantees that people have when they have been charged with a criminal offence. These include the right to be told the charges in a language they understand; the right to an interpreter; the right to have time and the facilities (such as a computer) to prepare their case or to talk to a lawyer; the right to have the trial heard without delay; the right to be told about Legal Aid if they do not already have a lawyer; the right to be presumed innocent until proven guilty; and the right not to have to testify against themselves or confess their guilt.
Right not to be tried or punished more than once (section 26)
A person will only go to court and be tried once for a crime. This means that if the person is found guilty they will only be punished once. If they are found to be innocent they will not be punished.
Retrospective criminal laws (section 27)
A person has the right not to be prosecuted or punished for things that were not criminal offences at the time they were committed.
5. Responding to complaints
Guiding principles – Good complaint handling systems respond to complaints by:
- acknowledging and dealing with complaints in a timely way
- providing transparent information about how complaints are handled
- protecting the privacy of information as far as possible
- treating everyone involved in a way that is objective, respectful and fair
- considering and respecting human rights
- promoting accountability for decisions.
The responsibilities of public authorities (including all departments, public servants and local councils) are diverse and there is no ‘one size fits all’ response to complaints. There are some practices, however, that are common to good complaint handling in every organisation, such as:
- enabling members of the public to make complaints
- responding to those complaints in a timely and effective manner
- learning from the issues raised in the complaints
- improving their systems for taking, engaging with and resolving complaints from members of the public.
The most effective and efficient complaint handling systems use a tiered approach, including frontline resolution, investigation, internal review and external review. The flowchart at Appendix A shows how this approach can work in practice.
This section is designed to supplement existing guides and provide practical advice for effectively dealing with complaints that involve human rights issues under the Charter.
5.1 Receiving complaints
Public authorities with a human rights-based approach to complaint handling will actively enable complaints to be made and respond flexibly to the individual circumstances of the person making the complaint.
Not everyone can make a written complaint or call in business hours. We live in a diverse community where people have different communication preferences and needs. Barriers such as language, disability, homelessness or shift work could inhibit access to your organisation.
You can ensure your complaint handling system is accessible by:
- accepting complaints by telephone, letter, email, online and in person
- offering free access to a translation and interpreter service
- using the national relay service to communicate with people with hearing or speech impairments
- providing information in accessible formats
- providing support to members of the public to make a complaint if needed
- accepting complaints from authorised representatives if a person has difficulty in complaining themselves.
5.2 Make an initial assessment
Not all complaints require the same level of investigation or priority. It helps to ‘triage’ complaints at an early stage to determine their priority, and how and who should respond.As part of your assessment, you might need to speak to the person with the complaint to clarify the details of their complaint and the outcome they are seeking.
In relation to human rights, there are three key questions to ask when assessing a complaint:
1. Is a Charter right relevant to the complaint?
2. If so, did the public authority impose a limitation on the right?
3. Was any such limitation reasonable and necessary (i.e. proportionate)?
These three steps are discussed further below, and are set out in the flowchart at Appendix B and table at Appendix E (Steps 1-5).
5.3 Identifying human rights
Some people might expressly complain about their human rights being interfered with. More often, however, people simply complain about the action or decision they are unhappy with. Public authorities with the best complaint handling systems will consider human rights as part of managing every complaint they deal with.
In identifying whether a complaint raises human rights, you could consider, for example, whether the action or decision:
- restricted people – in their movement, where they live, are they detained?
- impacted on someone’s privacy?
- involved children?
- related to someone’s care and protection?
- had a particular impact on different groups in the community? For example, Aboriginal and Torres Strait Islander people, Culturally and Linguistically Diverse (CALD) people, Lesbian Gay Bisexual Transgender and Intersex (LGBTI) people, people with disability, women, young people and older people.
A list of examples of the types of matters that might engage each Charter right is outlined in Appendix D. This list provides examples only and is not exhaustive. It is intended to offer guidance in assessing whether complaints engage human rights.
The flowchart at Appendix D and the table at Appendix E (Steps 1-3) show the process for considering whether a complaint engages human rights.
5.4 Limiting human rights
If a human right is engaged by a complaint, the next question to ask is whether the right has been unreasonably limited.
The rights in the Charter are not absolute – they may be limited or balanced with other rights or the public interest (for instance, public safety) to ensure that in protecting one human right, another right or the public interest is not unreasonably affected.
Limitations on rights must have a clear basis and they must be reasonable and necessary in the circumstances.
The Charter provides that a human right may only be reasonably limited if it can be ‘demonstrably justified in a free and democratic society based on human dignity, equality and freedom’, and taking into account the following factors:
- the nature of the right
- the importance and purpose of the limitation
- the nature and extent of the limitation
- the relationship between the limitation and its purpose
- any less restrictive means or approach reasonably available to achieve the purpose that the limitation seeks to achieve.
As part of this process, when making a decision, you should always consider whether there is a way to achieve the objective while minimising the adverse impact on people’s human rights.
Limitations on rights must only go as far as necessary to achieve a legitimate aim – there must be a rational and reasonable connection between the limitation and the objective of the policy, law or decision. Material should be available that demonstrates your limitation is justifiable, such as studies, reviews, inquiries and if relevant, international case law.
As part of your assessment, you might need to clarify the details of the complaint or obtain information from other areas of your organisation about why an action was taken, how the decision was made or whether proper consideration was given to the person’s human rights.
Case notes are helpful to demonstrate this.
Appendix E shows a step by step process for assessing a complaint involving human rights (see Step 4 regarding assessing limits on rights).
5.5 Limitations must be reasonable and necessary
If a human right has been limited, the next question to ask is whether the limitation is reasonable and necessary (or can be ‘demonstrably justified’ – as described above at Part 5.4). Another way of expressing this is to ask whether an infringement or limit on a person’s human rights is proportionate.
It is useful to take a common-sense approach – is the limitation justified, or will the impact be too severe? (See the process outlined in the flowchart at Appendix B and the table at Appendix E (Step 5)).
A shorthand way to approach this is to ask:
Is it reasonable?
- Is the limitation on a person’s human rights reasonable?
- What is your evidence base for this?
The stronger the interference with a person’s human rights, the stronger the justification needs to be.
Is it necessary?
- Is the action or measure that limited a person’s human rights proportionate to what was trying to be achieved?
- Is there another reasonable way to achieve the goal that is less restrictive of human rights?
- Can it be done better, differently or more fairly?
5.6 Providing clear reasons
Providing clear reasons for decisions displays fairness, transparency and accountability. It helps the person with the complaint understand why you made your decision, whether or not you upheld their complaint. Wherever possible, it is good practice to call a person with the complaint regarding the reasons for your decision.
When my office makes enquiries with agencies about complaints, we often find they provide us with convincing explanations for their actions. If this information had been communicated to the person originally, they might not have escalated the complaint to us.
Good outcome letters:
- briefly describe the complaint and identify the issues
- use plain English and avoid bureaucratic language, acronyms and jargon
- explain the steps you took to investigate or resolve the complaint
- set out any relevant laws or policies in simple language
- clearly identify the outcome to the person who had the complaint and, if you have substantiated the complaint, the remedies you are offering them
- provide reasons for your decision
- give the name and telephone number of an officer they can contact to discuss the outcome
- advise them of the Victorian Ombudsman and any other relevant review rights
- translate information into a language other than English where appropriate
- convey the outcome in a way appropriate to a person’s particular communication needs (for example, literacy or disability).
5.7 Finding a solution
To be accountable, public authorities need to be prepared to admit mistakes and correct them. If a person’s human rights have been limited or interfered with and the limitation is not reasonable, the next step is to determine what response or remedy can be provided.
It is appropriate to offer a remedy if a decision, or the process leading up to the decision, was unfair or could have been communicated better. Doing so might contribute to preventing the matter from escalating to a review or oversight body.
Options for redress include:
- acknowledging and apologising for an error
- providing a better explanation for a decision or actions
- explaining why the error occurred and the steps your organisation is taking to prevent it happening again
- reversing the decision
- making an ex gratia payment
- disciplinary action
- amending or updating a policy, procedure or practice to ensure the situation does not occur again (you might wish to contact VEOHRC regarding assistance with reviewing policies and processes)
- offering human rights training to relevant staff (you might wish to contact the HRU, VEOHRC or the Ombudsman regarding training) other means of redress sought by the person.
The remedy should be fair, practical and proportionate to the seriousness of the issue.
5.8 Explaining options for review
Good complaint handling systems allow people to request an internal review of their complaint outcome. Your complaint handling policy can document the process. For instance, the Victorian Ombudsman asks people to:
- submit a request for internal review within 60 days of being informed of the complaint outcome
- explain why they believe there is an error in the outcome, and include any supporting evidence.
Reviews should be conducted by senior, experienced officers who have not been involved in the matter previously. This ensures the process is as independent as possible.
In appropriate cases, you might also consider using alternative dispute resolution, such as mediation, to try to resolve the complaint.
You should inform people of any external avenues of complaint or appeal if they are dissatisfied with the outcome. These include:
- Victorian Ombudsman
- IBAC, if the matter involves a potential breach of human rights by a Victoria Police member
- specialist bodies such as VEOHRC if the complaint concerns discrimination, the Mental Health Complaints Commissioner, the Health Complaints Commissioner
- statutory rights of appeal such as merits review at the Victorian Civil and Administrative Tribunal.
People can also sometimes raise their Charter rights in court when the question of whether a public authority acted unlawfully under the Charter is relevant, or the interpretation of a law consistent with human rights is a question in the case. The Attorney-General and VEOHRC have the right under the Charter to intervene or be involved in such cases.
Note: The Australian Human Rights Commission can only handle human rights complaints about the actions of Commonwealth Government departments and agencies.
5.9 Learning from complaints
Best practice complaint processes embed human rights considerations into complaint practices and procedures. Where possible, you should draw on best practice to incorporate Charter considerations into your complaint procedures.
Recording and analysing your complaint information with regard to human rights issues that have been identified or raised regularly will help you identify areas where your organisation’s services might need to improve.
It is useful to consider:
- the number of complaints and any trends over time
- which human rights have been identified or raised
- the types of issues or services involved
- the outcomes of the complaints
- the demographics of those who raise complaints.
It is good practice to provide quarterly reports to senior managers about complaints, along with any recommendations about how to improve services.It is also good practice to report on human rights issues in your annual report.
6. Template form – information to collect to manage complaints involving human rights
This Guide includes a template form at Appendix F for public authorities to guide and enhance existing procedures for managing complaints that might raise human rights.
The form could be incorporated as part of a checklist for departmental complaint handlers.
The form at Appendix F should be used in conjunction with the flowchart (Appendix B) and overview of the process for dealing with human rights related complaints (Appendix E).
7. Where to go for further information
If you need further information or assistance about whether the Charter is relevant to a complaint you can contact:
Peer networks to share learnings and insights into how to embed a human rights culture into government organisations are also encouraged. VEOHRC runs a VPS Human Rights Network, which aims to provide information, ideas and networking opportunities to public sector employees who are interested in applying human rights in their work. Members of this network receive email updates, invitations to events and resources to assist public decision-making.
If you are interested in learning more about the Charter, or in receiving training on the Charter, you can contact the HRU or VEOHRC (see contact details above).
Appendix A: Complaints handling flowchart
This flowchart shows how a tiered approach to complaint handling can work in practice.
Assess the complaint and determine how it should be dealt with
Are the issues raised…
Complex, serious or systemic
Unlikely to be easily resolved
Allocate the matter to an officer for investigation and advise the person with the complaint of the process
Resolve the matter and advise the person with the complaint of the outcome. Is the person still aggrieved?
Obtain relevant evidence and maintain a complete record of the investigation
Make an objective and fair decision on the weight of the evidence available
Consider whether an internal review is appropriate
Record and close the matter
Prepare a report / outcome letter setting out the steps taken and the reasons for the decision
If appropriate, allocate the matter to an independent senior officer for internal review and advise the person with the complaint of the process
Where the investigation identifies an error, take appropriate remedial action
Review the complaint process to date and make an objective and fair decision on the weight of the evidence available to either confirm, vary or reverse the outcome, as appropriate
Resolve the matter and advise the person with the complaint of the outcome. Is the person with the complaint still aggrieved?
[go to 'Consider whether an internal review is appropriate' ↗]
Advise the person with the complaint of the internal review outcome and any avenues of external review
Record and close the matter
Record and close the matter
Appendix B: Flowchart - considering human rights issues in complaints
complained about might
raise a human right?
Continue usual complaint handling process
Appendix C: Acknowledgement letter example
This is an example of an acknowledgement letter for a complaint.
Dear Ms Citizen
Thank you for your email dated 1 January 2017 about the lack of wheelchair access to our building.
We are considering your complaint. We will contact you within x time to provide you with an update or to discuss how we can resolve your complaint.
If you have any questions, you are welcome to contact me on 9555 5555.
Customer Service Officer
Appendix D: Human rights triggers in public authorities' activities
The following table aims to prompt you to link particular human rights with your public authority's activities. The table steps through each Charter right and provides guidance on the types of activities that can have an impact on that right. It is not an exhaustive list, and is used here to provide some context for the Charter rights and the work of public authorities.
It may alert you to when a complaint might engage a human right or when your public authority might need to amend any programs, services or proposals to ensure compatibility with the Charter.
You will need to take this human right into consideration ...
... if the program, service or proposal (or complaint in relation to)
|Recognition and equality before the law (section 8)|
Right to life (section 9)
|Protection from cruel, inhuman or degrading treatment (section 10)|
|Freedom from forced work (section 11)|
|Freedom of movement (section 12)|
|Protection of privacy and reputation (section 13)|
|Freedom of thought, conscience, religion and belief (section 14)|
|Freedom of expression (section 15)|
|Peaceful assembly and freedom of association (section 16)|
|Protection of children and families (section 17)|
Entitlement to participate in public life (section 18)
|Cultural rights (section 19)|
|Property rights (section 20)|
|Right to liberty and security (section 21)|
|Humane treatment when deprived of liberty (section 22)|
|Children in the criminal process (section 23)|
|A fair hearing (section 24)|
|Rights in criminal proceedings (section 25)|
|Right not to be tried or punished more than once (section 26)|
|Retrospective criminal laws (section 27)|
Appendix E: Process for dealing with human rights complaints
Questions to consider when receiving a complaint
Assessment to make
|1. Has the person mentioned human rights directly?||Yes|
If yes, record and proceed to question 2.
|No||Proceed to question 3.|
|2. If yes, which human rights did they mention?||For example, privacy rights||Record specific rights and action and proceed to question 4.|
|3. If no human rights are mentioned by the person with the complaint, do you think the decision or action complained about might still engage a human right? Refer to Part 5.3 of the Guide and Appendix D for guidance.||Yes. Which human right(s) is engaged? For example, privacy and property nights.||Record specific rights and proceed to question 4.|
|Maybe||Conduct an assessment using the information provided in the Guide (Part 5.3) and come to a conclusion either Yes/No.|
|No||Proceed with the handling of the complaint in accordance with your organisation's policies and procedures.|
|4. Has the right(s) been limited? Refer to Part 5.4 of the Guide.|
|Record the nature of the limitation and proceed to question 5.|
|No||Record reasoning as to why the right(s) is not limited. Proceed with the handling of the complaint in accordance with your organisation's policies and procedures.|
|5. Is the limitation on the right(s) reasonable and necessary? Refer to Part 5.5 of the Guide.||Yes||Record reasoning as to why the limitation on the right(s) is reasonable and necessary. Proceed with the handling of the complaint in accordance with your organisation's policies and procedures.|
|No||Record reasoning as to why the limitation on the right(s) is not reasonable and necessary, and proceed to question 6. Inform the person of their right to contact the Victorian Ombudsman.|
|6. If human rights are engaged by the administrative action, the rights are limited and the limitation is not reasonable and necessary, then you must determine:|
On the basis of the assessment, how serious is the human rights issue and what action should you take?
|Obtain sufficient information to make assessment.|
Discuss with your manager whether further investigation is needed.
Following discussion, consider taking one of the following actions, for example:
Record your assessment of the seriousness of the human rights issue and the action taken, for instance, an apology or referral made to other agency or body. Inform the person of their right to contact the Ombudsman (if you have not already done so).
|7. Has the person been made aware of their right to complain to the Ombudsman or IBAC (for complaints about police)?||Consider whether the person has (at any stage) been made aware of their right to complain to the Ombudsman or IBAC (for complaints about police).||Inform the person of their right to make a complaint to the Ombudsman or IBAC (for complaints about police).|
Appendix F: Template form - information to collect to manage complaints involving human rights
This form is for public authorities, to help guide and enhance existing procedures for managing complaints that might raise human rights.
The form could be incorporated as part of a checklist for complaint handlers.
The form at Appendix F should be used in conjunction with the flowchart (Appendix B) and overview of the process for dealing with human rights related complaints (Appendix E).
Part 1: Background information
Name and contact details of the person making the complaint
Who or what is the complaint about?
What decision or action by your organisation brought about the complaint?
When and where did the event or incident occur? Provide details of the event(s) where possible.
What action has (or has not) been taken by your organisation since the complaint was made? Please identify each instance.
Are there any other parties to the incident or action? Provide as much information as possible of any other parties. (Consider whether there are any privacy issues).
Part 2: Human rights analysis
Which of the person's right(s) have been engaged?
Has the person's human right(s) been limited by the decision or action of your organisation? If so, how?
If the person's human right(s) have been limited, is the limitation imposed by your organisation's action reasonable and necessary?
What is your evidence to support this?
Is there another reasonable way of achieving the objective that is less restrictive of the person's human rights?
Which laws and policies are relevant to the situation? Is your organisation legally required to act in a particular way or is it exercising a discretion?
Part 3: Impact on the person with the complaint
What outcome is the person with the complaint seeking? Provide this information if known.
What has been the effect on the person with the complaint?
What action has been taken by your organisation to try to resolve the issue?
Are others affected by this situation? Could a group or class of people be affected? If so, provide details.
Part 4: Proposed action
What are the proposed or possible next steps to help resolve the complaint?
Does the situation affect a broader group of people? If so, how does your organisation plan to investigate this or consult with those people?
Part 5: Inform the person with the complaint of the Victorian Ombudsman and other relevant agencies
Have you informed the person with the complaint of the right to make a complaint to the Victorian Ombudsman or to contact other agencies, such as VEOHRC, or IBAC for complaints about police?