Monday 14th September 2015 saw an exciting development on the legislative human rights front in Australia, as a coalition of NGOs, community groups and community members hosted a public launch of the campaign for a Queensland Charter of Human Rights at Queensland’s Parliament House in Brisbane. During the launch, Qld Attorney-General Yvette D’Ath and Deputy Premier Jackie Trad committed to holding a Parliamentary Inquiry into legislating a Charter of Human Rights, representing a significant step forward for the State of Queensland and Australia
Australia signed the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) over four decades ago and has since ratified all seven core international human rights law treaties. Australia was also a drafting party of the 1948 Universal Declaration of Human Rights and the 1951 Refugee Convention. However, Australia remains in breach of its good faith obligations pursuant to Article 26 of the 1969 Vienna Convention on the Law of Treaties for failing to have properly implemented the contents of these treaties into domestic law. Australia has twice attempted to resolve this in 1944 and 1988 by incorporating basic human rights standards into the Constitution, but to no avail.
In fact, the Constitution of the Commonwealth of Australia is quite an awkward, inept and embarrassing document, frozen in the racism of the 1890s in which it was forged. For example, Australians do not even have a constitutional right to freedom of speech or freedom of association. In the absence of these basic democratic rights, a very narrow and implied right to freedom of political communication has been derived through implication by the High Court. Most recently, condemnation from the United Nation’s High Commissioner for Human Rights and the Special Rapporteur on Torture regarding Australia’s treatment of asylum seekers perhaps also signals the importance of incorporating human rights into the Constitution.
However, thankfully some constituent states and territories of Australia have taken it upon themselves to protect human rights, with the Australian Capital Territory (ACT)(where the country’s capital Canberra is located) legislating a Human Rights Act in 2004 and the State of Victoria legislating a Charter of Human Rights and Responsibilities in 2006 (for further information see here).
Whilst Western Australia and Tasmania have also recently explored adopting human rights legislation, it is Queensland that is, excitingly, on the move. Emerging from a past government of extreme incursions on the rule of law and civil liberties, including criminalising association, trampling on working people’s rights, indigenous rights and children’s rights, Queensland is now on the path to a Charter of Human Rights and more responsible, humane, transparent and accountable governance.
Although any proposed model of a Charter of Rights will be the subject of the parliamentary inquiry and submissions from the community, it would be expected to follow a legislative dialogue model similar to the ACT and Victoria. These include a parliamentary scrutiny mechanism to ensure all proposed parliamentary bills and instruments comply with basic human rights. However, it is expected there will be significant debate as to whether any Charter adopted could provide a basis for stand-alone causes of action (as in the ACT), or require ‘piggy backing’ on other causes of action (as in Victoria, where a review this year has recommended changing this to enable stand-alone causes of action to be brought) and whether damages can be sought for breaches of the Charter, something which is disallowed in both Victoria and the ACT.
In the Victorian experience, various case studies show that human rights legislation helped ensure: better accessibility on public transport; a more flexible approach to tax collection for disadvantaged families; better enforcement of the right to a fair hearing; ratepayers have opportunities to interact with the local Council; disadvantaged Victorians, from single mothers to the elderly and disabled, have been saved from eviction. Former Victorian Attorney-General and Charter champion Rob Hulls recently stated to a Queensland audience that ultimately the Victorian Charter: “has achieved a shift in the way that public institutions work, making consideration of rights an essential, rather than a luxury item, in the business of doing government.”