A Framework for Assessing Human Rights Issues

Background

1) The Queensland Council for Civil Liberties (QCCL) is a voluntary organisation concerned with the protection of individual rights and civil liberties. It was founded in 1966 in order to protect and promote the human rights and freedoms of Queensland citizens.

2) QCCL works towards a society in which the human rights enshrined in such documents as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to which Australia is signatory, are enjoyed by all Queenslanders and indeed Australian citizens.

3) These recognised rights represent a minimum standard for the protection of human rights and civil liberties. An analysis from the point of view of first principles might suggest that a higher standard of protection is required.

Issue

4) From time to time the Council is called to comment on existing laws, administrative actions or proposed laws that actually or potentially impact on civil liberties and human rights. Some of these involve infringing one or more recognised civil liberty in the pursuit of some perceived greater good.

5) This framework is to set out the Council’s starting position for analysing and commenting on such issues. The QCCL recognises that there are other ways of approaching civil liberties issues from a civil liberties perspective.

6) The Universal Declaration of Human Rights includes the following relevant provisions:

Article 29
(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

7) The Council views some human rights and civil liberties as so fundamental that they should never be curtailed. These include habeas corpus and the prohibitions against slavery, torture and secret trials. John Stuart Mill also accepted that free speech was a right not subject to a simple balancing analysis.

Statement

8) The Council’s starting position is to oppose any law or other proposal (“proposal”) that infringes on recognised human rights and civil liberties.

9) The Council takes the view that any interference with a recognised civil liberty or human right should only occur for “meeting the just requirements of morality, public order and the general welfare in a democratic society” and only if that interference can rationally be demonstrated to be:
a) reasonable, and
b) necessary, and
c) justified, and
d) proportionate

10) The Council can be expected to oppose any proposal where the proponents of that law fail to show that it meets these requirements. It is not up to opponents to show it will not, though they are free to attempt to do so.

11) The starting proposition for the analysis should be that there should be widely accepted research by recognised experts in the relevant fields which clearly demonstrates that a proposal would meet each of the requirements.

12) The Council accepts that where a body of research is inconclusive, unclear or controversial, that the proponent will have failed to make out the requirements for infringing on recognised civil liberties.

13) The Council accepts that views may diverge about the strengths and weaknesses of that research that lead individuals, including its own members, to different conclusions.

14) Formal positions of the Council are made by resolution passed by the Executive.

Application

15) The Council supports the position taken in the Victorian Charter of Human Rights which states:

Human Rights Charter Section 7 (2) – Human rights—what they are and when they may be limited
A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

16) It is often the case the while a proposal may potentially be in the interests of society, the Council would oppose it because the proponents :

a) have not shown that there are no other alternatives which do not interfere with civil liberties and human rights (at all or to the same degree)
b) have not demonstrated the need or level of harm from not acting
c) have not properly considered the level of interference which results from acting, particularly on minorities
d) have made proposals to cover single events or isolated incidents which have (unnecessarily) wider impacts or apply in areas that they need not
e) have not produced satisfactory analysis of similar proposals or laws from other jurisdictions which show the degree to which the proposal will be effective
f) have not put forward in the proposal how the effectiveness of it will be measured
g) failed to include a sunset clause or review period to review the law as soon as is practicable given the level of interference involved.

17) This document has so far dealt with what are known as the negative liberties or rights. It is however recognised by the Council that there are certain positive right or liberties that are necessary for people to be able to lead a full life and in particular to exercise the negative liberties. Some of those rights are set forth in the Universal Declaration of Human Rights, including the right to adequate welfare, a proper health system, to join a trade union, and to education. The Council supports those rights as enumerated in the Universal Declaration of Human Rights whilst noting there may be others. However, sometimes it is argued that in order to achieve those positive rights restrictions on the negative liberties are required. The arguments for those restrictions are to be assessed on the same basis as set out above recognising that the need to ensure the people have the capacity to enjoy the negative liberties is an important factor to be weighed in assessing whether to proposed a law is reasonable, necessary, justified, and proportionate.