History of Human Rights legislation in Australia

“Proponents for a human rights act have argued that a human rights act will highlight the rights of specific groups whose vulnerability calls for additional emphasis on protections”

When the Australian Constitution was drafted in the 19th century, there was much deliberation over the incorporation of human rights guarantees into the Constitution consideration was given to the inclusion of a guarantee of human rights. The framers determined, however, that a parliamentary system of democracy would ensure that human rights guarantees are protected by other means. In 1988, Australians voted ‘no’ in a referendum that sought to entrench a number of specific rights into the constitution.

The first attempt to bring about a statewide human rights act in any Australian jurisdiction was in Queensland in 1957 by the Country Liberal Government. The bill sought to constitutionalise the provisions of the Universal Declaration of Human Rights. There have been several calls for such an Act in Queensland since that time.

The most recent instance was in 2015, when the Queensland Labor Government committed to an Inquiry of the Queensland Parliament in consideration of a human rights act. The outcome of that inquiry was split; the government members supported the introduction of a human rights act but the non-government members were not in support of a “fundamental change to the constitutional balance in Queensland” without bipartisan and broad-based support.

In 2016, the Queensland Law Society established a Human Rights Working Group (HRWG). Comprised of QLS members with broad and diverse experience in law and human rights, the HRWG considered whether it was “appropriate and desirable” for parliament to legislate for a human rights act in Queensland. The QLS consultation resulted in opposing views from the membership. The QLS submission to the inquiry represented perspectives from both sides, along with their respective underlying merits.

Those opposed to the introduction of a human rights act in Queensland expressed sentiments that such an act would be unnecessary and inappropriate. It was argued that human rights such as the right to life, to freedom from torture and slavery, to movement, to reputation, to property, and to liberty are protected through either criminal or other spheres of law; an additional layer of protection did not need to be legislated. Though not enshrined in any act of parliament, existing rights in Queensland are nonetheless firmly established and easily ascertained, as are the remedies and sanctions to their infringement. The introduction of a human rights act could create inconsistency and confusion if ‘new’ human rights, which differ substantially from existing rights, are enacted.

In addition, those in opposition argued that a human rights act would impose economic and social costs, creating an extra layer of regulation and restrictions on ordinary citizens. This would expose them to an additional set of remedies and sanctions against the suit of those enforcing their own rights.

In terms of the appropriateness of such an act, it was argued that a fundamental problem with any human rights legislation is that it will attempt to convert political rights into legal rights, which are subject to legal proceedings and adjudication.

In contrast, the proponent perspective argued that there are gaps in what rights are protected under current laws, which undermines the effectiveness of these laws. While courts must favour an outcome, which aligns with international obligations and treaties, they are not binding domestic laws. A human rights act would encourage consideration of human rights during the drafting stage of legislature, and any abrogation of these rights would require justification.

The unicameral parliament in Queensland was another reason to advocate for an additional mechanism for protecting rights and freedoms by encouraging all arms of government to consider more thoroughly human rights implications in decision-making.

The proponents of an act recognised the necessity of limitations to be imposed on the rights protected under legislation. The Australian Capital Territory and Victorian human rights legislation provide that their rights may be subject ‘only to such reasonable limits as can be demonstrably justified in a free and democratic society’ and taking into account ‘all relevant factors’.

Despite the concerns raised by the opposition, and strong arguments on both sides of the debate, the Labor Government made an election promise to introduce a human rights act for Queensland.

On 31 October 2018, the Hon Yvette D’Ath, Attorney-General and Minister for Justice, introduced the Human Rights Bill 2018 into the legislative assembly. The bill recognises the inherent dignity and worth of human beings and the equal and absolute human rights of all persons in a democratic and inclusive society. The Attorney-General outlined the primary aim of the bill in the introductory speech: to ensure that respect for human rights is embedded in the culture of the Queensland public sector and that public functions are exercised in a principled way that is compatible with human rights.

QLS has reconvened the Human Rights Working Group to examine the 2018 Bill and make a submission to the parliamentary committee. Submissions are due at the end of November 2018, for the Bill to be debated in parliament in the New Year.

The 2018 Bill is substantially similar to the Victorian Charter of Human Rights, but goes further to include the right to education and health services.

The Society was also invited to appear as a witness at the public hearing on the bill.

Victorian Charter of Human Rights

The Victorian Charter of Human Rights, introduced in 2006, sets out the basic rights, freedoms and responsibilities of all people in Victoria. The Charter specifically protects 20 fundamental human rights, limited where necessary and reasonable.

The Charter contains mechanisms for review of the legislation after a period of four years, and again after eight years of operation.

The eight-year review, which was conducted in September 2015, indicated that the Charter helped build greater consideration and adherence to human rights principles within the Victorian public sector, Parliament and the courts. However, the review also found that efforts to embed the Charter into governmental processes and practices had slowed over the years, halting the development of human rights culture in Victoria.

The review contained 52 legislative and policy recommendations to improve the accessibility, effectiveness and practicality of the Charter. The recommendations related to eight key areas:

1. Building the human rights culture;
2. Clarifying responsibilities for human rights;
3. The role of statutory authorities;
4. Remedies and oversight — the role of the courts;
5. Interpreting and applying the law;
6. More effective parliamentary scrutiny;
7. Emerging issues; and
8. The need for further review.

A report by the Judicial College of Victoria in 2015 revealed that the Charter had been cited in over 70 published decisions since its commencement. The majority of these cases have related to coercive powers under the Major Crime (Investigative Powers) Act 2004, the enforcement of unpaid fines and the operation of disciplinary bodies. The Charter has also had an impact on the process of statutory interpretation in Victoria. Close to half of the cases between 2006 and 2015 discussed the interpretation obligations as outlined in the Charter.

The Charter has been achieving outcomes for individuals who now have the ability to raise their human rights concerns directly with public authorities.

Prepared for ‘First Reading’ by Legal Policy Clerk, Pip Harvey Ross on behalf of the Queensland Law Society Legal Policy Team.