A Human Rights Act: What it is and why we need one in Queensland

By Dan Rogers and Emma Phillips | 11 Feb 16

In Queensland, momentum is building towards the introduction of a Human Rights Act. A broad and dynamic group of community organisations, social justice groups and individuals have been issuing increasingly loud calls for the introduction of legislative protection of the basic rights all people should enjoy. These calls have now garnered a response from Parliament, with the Queensland Attorney-General recently announcing that the Government will refer the matter of a Human Rights Act for Queensland to a Parliamentary Inquiry, saying that “this is an important conversation to be having and it’s certainly the right time to be having it”.

What is a Human Rights Act?

A Human Rights Act, often called a Charter or a Bill of Rights, is normally a statute. It is not an amendment to a constitution. It is therefore not entrenched. It can be changed or appealed at a future point.

This means that a Human Rights Act does not stop the Government from pursuing good policies that may affect people’s rights. The reality is that all rights have limits and in most situations there are, in fact, competing rights. However, a Human Rights Act is a statement by the government that it supports fundamental human rights and that those rights will be considered by government in the introduction of new legislation.

Why do we need a Human Rights Act?

Australia is one of the only western democratic nations without a Human Rights Act. Queensland also lacks blanket legislative protection of basic human rights. While there are some laws that incidentally offer protection for some human rights, this protection is patchy, inconsistent and inadequate. Furthermore, while Australia has signed, and in some cases ratified, a number of international treaties and conventions that protect human rights, many of these conventions have not been implemented into the laws of Queensland (or of the Commonwealth) and they are therefore not binding on decision-makers.

There are Human Rights Acts in the ACT, Victoria, the UK, Canada and New Zealand. In these jurisdictions, the respective Human Rights Acts operate in addition to the other rights safeguards, and the sky has not fallen. Rather, people’s lives have improved.

Queensland is not only lacking in human rights protection compared with some of our neighbouring states; we are also more vulnerable to abuses of process. Queensland is unique in having a unicameral parliament, meaning that there is only one house of parliament. There is no upper house to review the laws passed by the House of Representatives as in other states, where this mechanism acts as a fetter on government power.

Image provided by author

Image provided by author

A Human Rights Act would protect Queenslanders by explicitly requiring law-makers to turn their minds to the human rights implications of legislation, compensating to some extent for the lack of checks on government power embedded within the system.

Australians are lucky to live in one of the most prosperous, developed and civilised societies in the world. Despite this, we must not be complacent and there are, in fact, numerous human rights issues in Queensland right now that require redress. Among them is the lack of mental health services in rural and remote areas, the lack of availability of appropriate public housing, the treatment of vulnerable people with disability, the treatment of older people in nursing homes, domestic and family violence and the treatment of Aboriginal and Torres Strait Islander children within the child protection system – including the failure to properly respect the child’s ethnic, religious, cultural and linguistic background.

The first step in addressing these human rights issues is the introduction of a Human Rights Act that clearly sets out our fundamental human rights, guarantees that the government will respect those rights and allows for redress when our rights have been violated.

Human Rights Acts have been successfully used in other jurisdictions to bring about better outcomes for vulnerable people. For example:

  • Housing: Human Rights Acts have been used to prevent homelessness. In the ACT the decision to evict a man and his three kids from crisis accommodation – which would have resulted in homelessness – was found to be an interference with his human rights and the Tribunal did not allow the eviction.
  • Disability: Human Rights Acts can help to protect the rights of people with disability, including their right to choice with respect to accommodation and support, their right not to be treated in a cruel, inhuman and degrading manner, and their right to liberty. In Victoria, a disability support worker who had been dismissed from employment after dragging a person with an intellectual disability across a carpeted hallway appealed his dismissal. The Supreme Court upheld the dismissal in part because the worker was found to have breached the right to freedom from cruel, inhuman and degrading treatment.
  • Domestic violence: Human Rights Acts can help to protect the rights of women and children to freedom from torture, inhuman and degrading treatment, to liberty and security of person, to the highest attainable standard of health, to equality in marriage and family relations and to life. Human Rights Acts can give women who have experienced violence new tools when seeking protection of their rights, including access to adequate and appropriate services.
Image provided by author

Image provided by author

The way forward

The introduction of a Human Rights Act would be a strong statement about who we are as Queenslanders and who we aspire to be. This is important as we move towards an increasingly integrated and globalised, yet paradoxically an increasingly fragmented and divisive, social landscape. The way in which a society looks after its most vulnerable is very telling of the fundamental values and beliefs of that society.  A Human Rights Act will help members of our Queensland community to better understand human rights and to build a safer, more respectful and caring society.

The Queensland Government’s commitment to a parliamentary inquiry into a Human Rights Act in Queensland is an exciting step forward for Queensland. It is the first step in the walk towards a more humane, compassionate and progressive society.

What you can do:

You can help to further the momentum towards human rights protection in Queensland by:

Dan Rogers is Director of Robertson O’Gorman Solicitors and Emma Phillips is Systems Advocate at Queensland Advocacy Incorporated

Feature image: Girl in Brisbane by Andrew Sutherland/Flickr