Cautious rights for Banana Benders

Explainer ... Queensland's Bill of Rights ... Cheers and Boos ... New law on the cusp of happening ... Final submissions ... From the dialogic school ... Compliance and remedies ... The culture warriors have nowhere to go ... Janek Drevikovsky spells it out   

 

Queensland's long awaited Human Rights Bill is edging closer to becoming law. 

In late October it was given its first reading by attorney general Yvette D'Ath in parliament. The Bill makes good on a 2017 re-election promise by the Palaszczuk Labor government, and it's almost certain to pass the state's unicameral parliament, where Labor holds a majority. 

That won't happen until early next year. In the meantime, the Bill has been referred to the Queensland Legal Affairs and Safety Committee. 

In consultations running to the end of November, the committee took over 150 submissions. Stakeholders ranging from bikie gangs to the teachers' union have recommended significant amendments, and the LNP state opposition is kicking up a fuss over issues of law and order. 

The committee reports on February 4, 2019. If everything goes according to plan the Bill will come into effect in early 2020. 

How it works

The Human Rights Bill is substantially modelled on Victoria's Charter of Human Rights and Responsibilities. Like the Charter, it enshrines certain rights in an act of parliament, and sets out how lawmakers, judges and officials must factor these rights into their decisions. 

It also creates a complaints and remedies regime, but does not give individuals a stand-alone action for breach of human rights.

The Bill belongs to the "dialogic" school of statutory rights schemes: it aims to get decision makers talking about rights and create a "rights culture" in government. As AG D'Ath said: 

"The bill aims to promote a discussion, or dialogue, about human rights between the three arms of government: the judiciary, the legislature and the executive." 

Which rights are those? 

As with Victoria's Charter, the Queensland Bill takes most of its cues from the International Convention on Civil and Political Rights, which is the source of 21 of the enshrined rights. 

These include privacy and free speech protections, the right to life, the right to due process, freedom of association and freedom of religion. 

Unlike the Victorian Charter, the Bill also includes rights from the International Convention on Economic and Social Rights: these are the right to education and the right to health services. 

Only natural people, and not corporations, have the legislated protections.

Compliance and remedies

The Bill requires parliament, the courts and government agencies to act in a way that is "compatible" with human rights. Conduct is compatible with human rights if it does not limit the right, or does so only to a reasonable extent. 

Under the Bill, the mover of new legislation must certify its compatibility with human rights, and all committees examining new legislation must do the same. Ministers introducing subordinate legislation also have to issue a compatibility certificate. 

There are no consequences for failing to meet these three requirements. 

In exceptional situations, parliament may explicitly exempt new legislation from the human rights regime, but must explain why it has done so. 

Judges are expected to interpret legislation in a way most compatible with the legislation and may consider foreign and international law to do so. 

Courts cannot, however, strike down legislation outright. Nor does the Bill provide for judicial review on the grounds of human rights compatibility alone.  

Instead, if questions of human rights compatibility turn-up in proceedings commenced on other grounds, the matter may be referred to the Supreme Court. 

The Supreme Court will then review how the human rights law applies to the impugned legislation, and can declare acts to be incompatible with human rights protections. 

The relevant minister must respond, in writing, to any such declaration within six months, but is not otherwise required to act. 

Public entities, including all government departments and the police, must act in accordance with the Bill. If a public body breaches the human rights law, an affected individual can sue them on that basis - but only if they also have some other ground for seeking relief. 

There is no separate cause of action for breaching the Human Rights Bill. Instead, aggrieved parties will have to first find a standalone complaint - for example, one of the normal grounds for judicial review - and only then can they add a human rights breach to their claim. 

Plaintiffs are not entitled to damages for a violation of their human rights. They can obtain any other remedy to which they would be entitled under their standalone complaints - even if those standalone complaints fail. 

The Bill also rebrands the Queensland Anti-Discrimination Commission as the Queensland Human Rights Commission, and sets up a complaints system, which involves the new commission, the Ombudsman and other oversight agencies.  

Thumbs up, thumbs down 

Things are looking positive for the Human Rights Bill - in principle. The bulk of submissions received by the Legal Affairs and Safety Committee are supportive of  the Bill. 

That included the Bar Association and the Queensland Law Society. Legal academics, including constitutional law expert Professor George Williams, have also been enthusiastic. Williams and colleague Dr Janina Boughey praised the Bill as the:

"... best drafted and most effective shield of people's rights yet seen in Australia."

Even for it supporters, however, the Bill is far from perfect. Many have criticised its failure to create a standalone civil action for human rights breaches. The Queensland Law Society called this "a barrier to accessible, just and timely remedies for infringements of basic human rights". 

Other commentators, ranging from the Queensland Human Rights Law Centre to the Bar Association, agree and have called for an action in human rights to be included in the final Bill. 

Professor Williams and Dr Boughey are also anxious that the Bill avoid the pitfalls set for the Victorian Charter by Momcilovic v The Queen, where the High Court poured cold water on the Victorian court's practice of remedying (effectively straining the words of) statutes until they were compliant with the Charter. 

In response, Victorian courts have begun treading carefully, Williams and Boughey argued, and now largely rely on settled common law interpretative principles, rather than use the more vigorous options presented by the Charter. 

To avoid something similar in Queensland, they recommended the Bill's interpretative provisions be drafted in stronger language.

Other criticisms focus on who will benefit from the new protections. Amnesty International is worried that, under the Bill, children may still be incarcerated with adult inmates. 

Amnesty says the Bill only requires convicted youth offenders to be treated in a way that is "appropriate for the child's age", and does little to meet the Palaszczuk government's promise to remove 17 year olds from adult prisons. 

There are also concerns that the Bill extends the right to a fair trial to the accused only, and not to victims. The Queensland Women's Legal Service complained that the victims of sexual assault and domestic violence often suffer during the trial process, and that enshrining the rights of the accused alone may hinder "victim-sensitive" reforms. 

To "counterbalance" things, the Women's Legal Service recommended the creation of a "general right to freedom from violence, abuse and neglect".   

Some have also complained the Bill will do little to target the most egregious rights abuses: retired Queensland solicitor Michael O'Keefe pointed to indigenous incarceration rates, saying "it is seriously open to question as to whether this Bill does anything to actually protect the fundamental right of freedom and liberty of Aboriginal Queenslanders". 

Then, there are voices critical of the Bill's fundamental approach. 

Though supportive of human rights legislation, Professor Jeremy Gans of Melbourne Law School was astonished that Queensland had based its Bill on the Victorian Charter: 

"Why anyone would opt to copy the bulk of Victoria's Charter is beyond me." 

He pointed to the unworkable "piggy back" requirement in Victoria, which means any human rights complaints have to be brought in the state's expensive Supreme Court, rather than in its "coalface" administrative tribunal. 

There was the usual opposition from Professor James Allan of Queensland University Law School. 

In a broadside against legislative human rights protections, Prof. Allan claimed in an article for The Australian that statutes like this were undemocratic:  

"... they empower judges and they disempower politicians." 

He described the Bill as a leftist attempt to remove power from the legislature and give it to a "legal caste" that "tends to agree with [them] more often than what politics produces". 

"An astute observer would note that in all the Anglosphere jurisdictions in which these instruments have been brought in, it is always done by the political left." 

Other complaints came from pro-life groups, who railed against a clause in the Bill that effectively stops the "right to life" from extending to the unborn. 

One group, the Unborn Children's Advocacy Network, even argued Queensland's recent move to decriminalise abortion was incompatible with the new Bill. 

It said abortion was at odds with the right to life, and called on the parliament to repeal the decriminalisation bill before passing the new human rights legislation.