Human Rights Law in Australia
Unlike many Western countries, Australia does not have a federal Bill of Rights or similar legislation. A handful of rights are enshrined in the Constitution, including the right to vote in s 41, the right to freedom of religion in s 116, the right to trial by jury in s 80, and some others. Additionally, some rights are protected in the form of legislation, such as:
- Australian Human Rights Commission Act 1986 (Cth)
- Sex Discrimination Act 1984 (Cth)
- Racial Discrimination Act 1975 (Cth)
- Disability Discrimination Act 1992 (Cth)
- Age Discrimination Act 2004 (Cth)
On the international level, Australia assisted in the drafting of the United Nation's Universal Declaration of Human Rights. The Australian Capital Territory and Victoria both have human rights legislation: the Charter of Human Rights and Responsibilities Act 2009 (Vic) and the Human Rights Act 2004 (ACT).
In Queensland, no such legislation exists. However, a campaign has recently been launched to reignite the push for a human rights act. On Monday 14th September 2015, the Attorney-General of Queensland announced that there would be a Parliamentary inquiry into a human rights act for Queensland.
Aimee McVeigh of McVeigh Law is part of the recent campaign to have a Human Rights Act for Queensland. She kindly shared some comments with Pandora's Blog about the need for human rights protection in Queensland.
Why the push for a Human Rights Act now?
Aimee: "While the legislative protection of human rights has always been important for all Queenslanders, it has been placed back on the agenda by the Hon. Peter Wellington, independent member for Nicklin and current speaker of the Queensland Parliament. In February this year Hon. Peter Wellington and the Premier committed to take steps towards a ‘public discussion’ on the adopting of a Human Rights Act in Queensland. Since then, momentum and support has been growing towards the adoption of a Human Rights Act for Queensland."
Why Have a Human Rights Act?
Many feel that existing constitutional rights, parliamentary sovereignty, and common law rights are sufficient to protect Australians from breaches of their human rights. However, the evidence shows that many groups in Australia face serious disadvantage.
What would be the key elements of the proposed Human Rights Act?
Aimee: "A Human Rights Act would impose a duty on the Parliament, the Executive and the Judiciary to consider human rights in their actions and decisions. The legislative models that exist in the ACT and Victoria set up a ‘dialogue’ between the government and the people about how their actions interact with the rights of citizens. We expect that Queensland’s Human Rights Act would set up a similar dialogue. We have an opportunity to learn from Victoria and the ACT to improve upon the models that currently exist in Australia. The Victorian Charter has just undergone an independent 8 year review (the report was handed down last week) and we have a great opportunity to draw on these recommendations in the development of a Human Rights Act for Queensland."
Disability and the Law
Australians living with disability face a plethora of issues. These include:
- Involuntary sterilisation, which is the State's way of controlling the fertility of vulnerable people in our society.
- Forcing disabled individuals to live in nursing homes, where they are cut off from the community. The Summer Foundation has worked hard to address this ongoing problem.
- Many younger disabled people have been classified under the portfolio of the Aged Care Commissioner, as there is no longer a Disability Commissioner.
- Voting rights - isolated individuals and those in Supported Residential Services are often unable to exercise their right to vote.
What are some key issues facing Queenslanders with disability which could be addressed by a Human Rights Act?
Aimee: "It is not possible to generalise about the impact on people with disability, women and Aboriginal and Torres Strait Islander peoples because they are diverse groups of people.
- Some Queenslanders with disability come in contact with the Public Trustee and the Office of the Public Guardian when their decision making capacity is impaired. A Human Rights Act would require these government departments to consider human rights in policy development and service delivery.
- Some people with disability continue to experience difficulties having their decisions recognised. People with difficulties communicating or with varying degrees of decision-making capacity currently do not have their right to be provided with support to make their own decisions recognised.
- A Human Rights Act could also provide protection to women who are interacting with child safety because of assumptions about their ability to care for their child.
Relevant case studies from Victoria include:
- In Victoria a disability support worker who had been dismissed from employment after dragging a person with an intellectual disability across a carpeted hallway appealed his dismissal. The Supreme Court upheld the dismissal in part because the worker was found to have breached the right to freedom from cruel, inhuman and degrading treatment.
- In Victoria a man with disability was provided with services to enable him to integrate with the community after an advocate used the charter to argue that not providing these services amounted to a breach of the man’s right to freedom of movement."
Lesbian, Gay, Bisexual, Transgender and Intersex People
While great strides have been made in recent decades to remove discrimination against the LGBTIQ community, many problems remain.
- Marriage equality - anyone who watches the news would be well aware that Australia is one of the few countries which does not allow same-sex marriage.
- Forced divorce for trans people - married couple are obligated to get divorce if one partner undergoes gender reassignment, under s 22 of the Births Deaths and Marriages Registration Act 2003 (Qld).
- Homosexual advance defence - the "gay panic" defence remains part of the Queensland criminal law, allowing for gay men to be killed on the basis of an unwanted sexual advance.
- Criminal records for homosexual activity - many gay men still have criminal records for consensual sex which occurred in the 1980s. While Victoria and New South Wales have expunged historical homosexual offences, Queensland is yet to do so.
Aboriginal and Torres Strait Islander Australians
Members of the Aboriginal and Torres Strait Islander community are often marginalised and disadvantaged within the justice system. For example:
- Over-incarceration of Indigenous Queenslanders - Aboriginal and Torres Strait Islander people constitute less than 4% of the Queensland population, yet account for nearly 30% of the state’s prison population.
Aimee: "There is potential for a Human Rights Act to provide particular benefits to Aboriginal and Torres Strait Islander peoples. The Victorian Charter of Human Rights includes legislative protection of Aboriginal peoples individual and collective cultural rights including the right to enjoy their identity and culture, maintain and use their language, maintain kinship ties and to maintain their distinctive spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs. No such protection exists in Queensland.
The 8 year review of the Victorian Charter includes a recommendation that the Charter be amended to recognise Aboriginal peoples’ right to self-determination."
Aimee: "A Human Rights Act should strengthen Anti-Discrimination legislation. The Victorian Charter has been used by women facing homelessness and women who have experienced domestic violence to prevent eviction and to help them to access the services that they need."
Aimee has a Brisbane Times opinion piece on this subject.
Where To From Here?
The Human Rights Act for Queensland campaign has an online presence, which can be used to stay up to date with events and opportunities to help push for a Human Rights Act. You can find the campaign on Facebook and Twitter.
You can take a picture of yourself with a sign showing your support for a human rights act and post it on social media #humanrights4qld
Write to your MP and let them know that this is an issue that you care about, and sign the petition https://www.change.org/p/annastacia-palaszczuk-support-bill-of-rights. You can volunteer with the campaign - email firstname.lastname@example.org to see how you can get involved.