Queensland is soon to be the third Australian jurisdiction with a statutory bill of rights. Earlier this month, the Queensland Labor Government introduced the Human Rights Bill 2018 (Qld) to Parliament. While not perfect, the Bill is a significant step forward for human rights in Australia.
Australia has limited constitutional protections for human rights, and no statutory bill of rights at the national level. Since federation, the ‘great underlying principle’ of the Australian system has been that ‘the rights of individuals [are] sufficiently secured by ensuring each an equal share in political power’.
But over the past 15 years, things have begun to change. The Australian Capital Territory (‘ACT’) and Victoria enacted their own statutory bills of rights in 2004 and 2006, respectively. Queensland, Australia’s third most populous state, is now doing the same.
The Queensland Bill establishes a dialogue model along the lines of the Human Rights Act 1998 (UK) and the ACT and Victorian schemes. It protects the traditional civil and political rights, as well as rights to culture, education and health services. A statement of compatibility must accompany every new piece of legislation introduced into Parliament. Courts must interpret legislation compatibly with human rights, so far as it is possible to do so consistent with the statutory purpose. If a statute cannot be interpreted compatibly with human rights, the Supreme Court may make a declaration of incompatibility. Finally, it is unlawful for a public entity to act incompatibly with human rights, or to fail to give proper consideration to human rights in making a decision.
The Bill brings the promise of formal, unified human rights protection to a further five million Australians. This is particularly significant in Queensland, a state with a history of ‘authoritarian, anti-intellectual governments’. Victoria’s bill of rights has noticeably improved the human rights culture in government. It is also beginning to be used as an effective tool in rights litigation. In 2017, the Victorian Supreme Court found that the government acted unlawfully by transferring a number of young detainees to an adult maximum security prison, and ordered their immediate removal.
The Queensland Bill builds on the experience in the ACT and Victoria. Unlike the other jurisdictions, Queensland has clearly defined ‘compatibility’ with human rights as the unifying concept for its dialogue model. An act, decision or provision is compatible with human rights if it does not limit a human right, or only limits a human right to the extent that is justified. The Bill also establishes a non-judicial complaints mechanism in the form of the rebranded Queensland Human Rights Commission (‘QHRC’). This provides a cheap, quick, alternative forum for human rights disputes, in contrast to the court-centric approach in the ACT and Victoria.
Nevertheless, the Queensland Bill has several shortcomings. First, it is unclear what judicial remedies are available if a public entity acts contrary to human rights. The Bill borrows a convoluted remedies provision from its Victorian counterpart. The provision is arbitrary. It ostensibly provides that a person may only obtain a remedy for a human rights violation if they happen to have some other, independent cause of action and ground of unlawfulness, on which the human rights claim can ‘piggy-back’. The provision is also needlessly complex – in Victoria, its precise operation remains uncertain, 14 years after its enactment. Why Queensland would use the Victorian provision, over the cleaner and simpler ACT equivalent, is a mystery.
Second, the Bill prohibits any award of monetary damages for a violation of human rights. This replicates the conservative approach taken in Victoria and the ACT, despite the fact that damages are available in cognate areas of law such as anti-discrimination and privacy.
Third, the non-judicial complaints mechanism is rather weak. If a complaint cannot be resolved through conciliation, the QHRC’s only option is to write a report about the complaint, which it may subsequently publish.
Each of these issues relates to enforcement. A statutory bill of rights can do much important work behind the scenes, by informing policy development and public decision-making. But to drive changes in behaviour, there must be a clear, accessible mechanism for a person to claim for a breach of their human rights, and obtain an appropriate remedy.