JATL and ALPSA held an open forum on 24 May 2018 to discuss the pros, cons and possibilities of Queensland enacting a Human Rights Act.
Aimee McVeigh: Human rights only exist if people fight for them and enforce them.
The latest push for a Human Rights Act in Queensland began when Peter Wellington MP took a stance against the Newman Government and called for a Human Rights Act. When Peter Wellington later supported the Labor Party to form government, the letters of exchange included a commitment to looking at the issue of a Human Rights Act for Queensland. Community organisations caught on to this idea and called for an inquiry through the parliamentary committee system. The Report was delivered in June 2016 and support was divided along party lines. The Labor party has made a written commitment to introducing a Human Rights Act for Queensland, modelled on the Victorian Charter of Human Rights and Responsibilities Act.
“Human rights only exist if people fight for them and enforce them”
QUESTION 1: is the existing human rights framework in Australia adequate?
AM: No.
Professor Tamara Walsh: For me, yes. For a vulnerable or disadvantaged person, probably not.
AM: However, we are all vulnerable to human rights abuses. We will all age and we could all succumb to a disability at any time. A Human Rights Act is about setting the framework to protect us.
TW: It is true that we could all become vulnerable at any time. Even just becoming a mother carries significant vulnerability.
QUESTION 2: what is the difference between a statutory bill of rights at state level and a constitutional bill of rights at the federal level?
AM: A constitutional bill of rights allows the courts to strike down a law that is inconsistent with human rights. A statutory bill of rights does not go this far. Under a statutory bill of rights, the different arms of government do not interfere with one another.
Dr Robert Mullins: For a good discussion of the case against a bill of rights, read Jeremy Waldron, ‘The Core of the Case Against Judicial Review’. For those in favour of a Human Rights Act, you should prepare yourselves for some hysterical claims to be made about how undemocratic bills of rights are. Those claims may be true for a constitutional bill of rights which is, on its face, undemocratic. However, for a statutory bill of rights, the claims are less applicable.
The obvious weakness of a statutory bill of rights is that it is only as strong as political consensus. Statutory bills of rights can easily be repealed or pushed aside by overriding legislation.
TW: From a jurisdictional point of view, it is important to have both a state and federal bill of rights. The state bill of rights will cover state matters, and the federal bill of rights will cover federal matters. Without both, there will be gaps.
“For those in favour of a Human Rights Act, you should prepare yourselves for some hysterical claims to be made about how undemocratic bills of rights are.”
QUESTION 3: will a statutory bill of rights be treated differently to an Acts Interpretation Act or a Legislative Standards Act?
AM: A Human Rights Act is more comprehensive than this. The Brennan Report suggested that a Human Rights Act should aim to do several things. First, it should require statements of compatibility with human rights to be included in all Bills and legislative instruments. Second, it should contain an interpretative provision requiring federal legislation to be interpreted in a way that is consistent with human rights. Third, it should impose an obligation on federal public authorities to act consistently with human rights.
QUESTION 4: how would you respond to the argument against a Human Rights Act that such an Act confers a broad interpretation power on the courts?
TM: This is a ridiculous criticism. Courts already have a broad interpretation power. Take, for example, the implied freedom of political communication that has been found in the Australian Constitution. Some would argue that a Human Rights Act would actually restrict this interpretative power.
RM: The common law has always dealt with this. Our common law is always applying general principles to specific cases. A Human Rights Act does introduce a new set of open texture rights without the associated case law. Judges maybe do not want to take on the role of deciding how to apply these rights in the context of a divided community. Though, arguably, judges already play a political role. They make decisions about what is ‘in the best interests of a child’ and how far we should take freedom of contract.
TW: We can see from decisions in Victoria and the ACT, that judges are still reluctant to base their decisions on human rights. In their decisions, judges in those jurisdictions will discuss human rights but ultimately base their decisions on existing law.
AM: It is important to return to the origins of human rights and what governments do with our rights. Remember, a Human Rights Act is only going to apply to government decisions, not service providers. A Human Rights Act may give more transparency to government decisions and the associated complaints mechanisms.
QUESTION 5: another argument against a Human Rights Act is the floodgates argument. How would you respond to it?
AM: This is why the Queensland government has decided to follow Victoria, rather than the UK or ACT. Victoria does not have a standalone action for human rights abuses, a claimant needs to have another action to ‘piggyback’ their human rights action onto.
TW: There is no evidence of a floodgates effect in other jurisdictions with a Human Rights Act. Why? Maybe because the claimants are the marginalised members of our community and do not have the money to run a court case. Relatedly, in a study on disability in education, we found that claimants found greater value in the conciliation process than the tribunal process (see Tamara Walsh and Kathryn Thomas, ‘Children with Special Needs and the Right to Education’).
“There is no evidence of a floodgates effect in other jurisdictions with a Human Rights Act.”
QUESTION 6: what are some of the problems with a Human Rights Act?
RM: There seems to be an increasing hostility to rights, driven by a growing disenfranchisement. People are disillusioned with politicians. Is the solution to give power to judges? Probably not when you consider the growing anti-establishment feeling. This really just gives politicians an ‘out’. A Human Rights Act might be seen as plastering over the cracks and ignoring the structural problems.
TW: I think you’re thinking too much like a lawyer. Clients expect to be able to enforce rights that they do not currently have. Maybe we just need to educate people on their rights, and which rights they do not have. You may get greater buy-in by telling people what they don’t have.
RM: When I think of three of the biggest, current human rights issues – solitary confinement in prisons, immigration detention and abuse of police power – none of them will be changed by a Human Rights Act.
TW: I agree, but maybe the answer is to just attack the specific laws.
AM: A Human Rights Act is not going to solve all the structural problems, but it is worth solving some of the problems. A Human Rights Act consolidates decision-making across government departments and may improve that decision-making.
RM: Another argument against a Human Rights Act would be that it leads to a transfer of power to the judiciary. While the parliament can take that power back at any time, they do not seem to do that. One striking example is the Obamacare decision in the USA.
AM: That would not happen in Queensland.
TW: Yes, the climate is different in Australia. Human rights are only used as a last resort in the courts.
“A Human Rights Act is not going to solve all the structural problems, but it is worth solving some of the problems.”
Aimee McVeigh is the director of Human Rights 4 QLD. She is a lawyer with experience in a variety of community legal centres, including ATSILS, Caxton Legal Centre, Disability Law Queensland and Law Right (formerly QPILCH). Aimee has been coordinating the Human Rights 4 QLD campaign for three and a half years.
Professor Tamara Walsh is an academic at UQ specialising in human rights law and social welfare law. Professor Walsh’s work covers a vast range of topics, including homelessness and the law, child protection, access to justice and public nuisance laws. Professor Walsh was one of the founders of the UQ Pro Bono Centre in 2008 and is involved in many pro bono projects.
Dr Robert Mullins is an academic at UQ with a broad interest in legal philosophy, ethics and artificial intelligence. Dr Mullins is a great supporter of ALSPA and JATL.
Follow the Human Rights 4 QLD campaign here.