Review of Queensland’s Human Rights Act
The Review Manager
Independent Human Rights Act Review
admin@humanrightsreview.qld.gov.
Dear Madam
REVIEW OF QUEENSLAND’S HUMAN RIGHTS ACT
Kindly accept this submission on behalf of the QCCL in relation to the above review.
From its inception in 1967, the Council argued for the implementation in Queensland of a Bill of Rights ie an instrument similar to that in the United States. In 2005 we changed our policy to reject that position and to move to one which argued for a statutory Human Rights Act.
On that basis, we actively campaigned for the Human Rights Act (the Act). We were represented on the coordinating committee of the Human Rights Act for Queensland campaign. We remain of the view that this Act represents a significant step forward in the protection of the civil liberties and civil rights of Queenslanders. We welcome this review of the Act.
The Council is an organisation of volunteers, which amongst other things seeks the implementation in Queensland of the Universal Declaration of Human Rights
As an organisation of volunteers, our time is limited. As a consequence, this submission will not address every aspect of the consultation.
We will now address some of the questions put by you in your consultation paper.
1. The Human Rights Act currently includes civil and political rights, cultural rights (general and indigenous) and some economic and social rights (education, health). Are there any other rights that you would like to see included in the Act and protected in Queensland?
In supporting the original Human Rights Bill, the Council adopted the approach that it was politically expedient in terms of getting the legislation passed to argue for the inclusion in the Bill of a conservative and somewhat traditional set of rights. We remain of the view that that approach is the correct one to ensuring the continuing acceptance of the Act.
It also has to be said that to include too much in a Human Rights Act would likely turn the instrument into a substance less piece of paper because Courts having no personal or institutional capacity to make decisions in relation to non-traditional rights, would in the end simply defer to the government.
However, as many have remarked, the set of rights is pretty useless if you do not have an environment in which you can enjoy them. To that end, we do support the inclusion in the Act of a right to a healthy environment.
As this is a right which falls into the category of social, cultural and economic rights particular issues arise. Traditional civil liberties can be put into an absolute form since they do not require any reference to amounts. An analogy to an “adequate standard of living” would be “a moderate amount of free speech” but the latter is not what is called for in any declaration of rights[1].
We have previously set out our views in relation to the inclusion of these types of rights in a Human Rights Act in this submission.
The application of these principles to this right leads us to support the formulation recommended by the majority in the recent report of the Parliamentary Joint Committee on Human Rights in relation to its Inquiry into Australia's Human Rights Framework. That proposal is as follows:
Every person has the right to an environment that does not produce adverse health consequences in the following respects:
a) Every person has the right not to be subject to unlawful pollution of air, water and soil.
b) Every person has the right to access safe and uncontaminated water, and nutritionally safe food.
c) No unjustified retrogressive measures should be taken with regard to this right.
d) No one should be subject to discrimination regarding the realisation of this right[2].
2. Do the current laws strike the right balance between different rights?
It is not clear to us to what this question is directed.
We would prefer a broader statement of the right to freedom of speech but for the political reasons articulated above we have not argued for a change.
If this question is directed to the operation of section 13 of the Act in general terms, then it operates as it has been expected to operate.
3. What other measures (non-legislative) are required to ensure human rights are protected under the law in Queensland? (eg support, education, training and guidance to the community)
The fundamental political reality is that in the absence of a commitment on the part of most members of society and most of government officials to the idea of individual rights no amount of legislation can guarantee the protection of civil liberties and civil rights. As has often been remarked the most extensive Bill of Rights in history was enacted in 1936 in the Soviet Union. Little good it did for anyone.
4. The Human Rights Act currently requires that a complaint must ‘piggy-back’ another type of complaint to access remedies. Should a person be able to pursue a complaint based on a human rights infringement, independently?
With all due respect to the views of Freeburn J in Austin BMI Pty Ltd v Deputy Premier [2023] QSC 095 at paras 369-377, it seems to the writer of this submission that there are very strong arguments in favour of the view that the failure to comply with the Act is a jurisdictional error. Following the decision of the High Court in Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of (NSW) (Inspector Childs) (2010) 239 CLR 531 the Parliament cannot oust the jurisdiction of the court to review for such errors. As a consequence, the "piggyback" provision must be unconstitutional. The tentative views of Tate J In Bare v Independent Broad-Based Anti-Corruption Commission and Others (2015) 48 VR 129 at paragraphs 378-397 are most informative on this topic.
But in any event, it remains our submission that a person's capacity to enforce their rights under this legislation should not be restricted to them being able to link it with some other cause of action. If the rights provided for under this Act are important, which they undoubtedly are, a person who claims to have been adversely impacted should be entitled to bring a proceeding to court alleging a breach without having to establish any other requirement.
Victoria allows a rights-based cause of action only on the back of existing legal claims. It was intended to reduce litigation but has instead resulted in lengthier and more complex cases.[3] In 2008, the ACT introduced section 40C(2) into their Charter which permitted an individual right of action. Based on research conducted by Professor George Williams AO, while there was a spike in the number of cases concerning breach of the Charter in 2009, this was not sustained. Prior to the introduction of section 40C(2), the percentage of ACT cases mentioning the Charter was just below 8%, and as of 2015 it sat just below 10%.[4] This refutes arguments that an individual cause of action in a human rights charter would lead to a flood of litigation.
5. The Human Rights Act currently provides for limited remedies. What remedies should be available to people whose human rights have been infringed?
The Council submits that there should be an entitlement to bring an action for damages for breach of the Act in any competent State court.
As Emeritus Professor Croucher, the President of the Australian Human Rights Commission has said:
Monetary damages are currently available for breaches of rights protected by federal discrimination laws, including breaches by public authorities. Damages are also available in the UK, New Zealand and Canada. The Human Rights Acts in the ACT, Victoria and Queensland do not permit the recovery of damages where a breach of human rights has been found. The bottom line is that Australian state and territory jurisdictions are outliers for not making damages available where breaches have occurred.
The reason for excluding access to monetary damages in the states and territories was supposedly to avoid litigation and costs for government. But jurisdictions with a direct cause of action and monetary damages available have not seen ‘floodgates’ of litigation. Additionally, procedural remedies will not always be effective in remedying every kind of breach. When it is not appropriate to have a decision remade – a traditional administrative law remedy – but a person has suffered loss or damages, courts should be able to provide a remedy. Otherwise, individual will be denied justice. The remedies provision should ensure that monetary damages are an available option to the courts where it is the correct remedy in the circumstances – as is the case in relation to unlawful discrimination[5].
There is in our submission no justification for continuing the anomalous situation under the Act where there is no financial remedy for a breach of it.
6. The Human Rights Act made amendments to the Corrective Services Act 2006 and the Youth Justice Act 1992.
· Are the amendments made by the Act operating effectively?
· Do you think these changes were fair?
We take this to be a reference to clauses 126 and 183 of the Bill. At the time the provisions were introduced, they were described as necessary to deal with the exigent situation at the time. The fact that they continue to be necessary six years later is an indictment of the government in terms of its management of detention centres, prisons and of the whole issue of youth justice in particular. At the time, when the Bill was introduced, it was our submission that these provisions should be subject to a sunset clause, which clearly did not happen.
It is our position that these provisions should be repealed. All of the factors which these provisions allow the relevant decision-makers to take into account, are fully accommodated in section 13 of the Act. For that reason, as we said in our submission in relation to the Bill, these provisions are unnecessary.
7. The Human Rights Act says that in certain circumstances Parliament can pass laws even though they breach the Act.
· Has the Parliament’s power to override the Human Rights Act been used appropriately?
· Do you think any changes need to be made to this power?
First, we note that the two examples of the Parliament overriding the Act both involved issues of youth Justice. We opposed both overrides of the Act. Therefore, we consider that neither of them was appropriate.
The second question seems to raise a broader issue as to whether or not the power of the Parliament to override the Act should be restricted in some fashion.
The New Zealand born political philosopher Jeremy Waldron, has been a long-term opponent of what he calls strong judicial review ie a situation where the courts have the authority to decline to apply a statute in a particular case (even though the statute on its own terms plainly applies in that case) or to modify the effect of a statute to make its application conform with individual rights (in ways that the statute itself does not envisage). Moreover, courts in this system have the authority to establish as a matter of law that a given statute or legislative provision will not be applied, so that as a result of stare decisis a law that they have refused to apply becomes in effect a dead letter[6].
This is of course a description of the American system. He is not opposed to what he calls a weak judicial review which is what happens under the Act.
Waldron has maintained that his opposition to strong judicial review rests on the proposition that certain conditions exist. In an article published in 2005[7] he considered whether or not in the situation of the unicameral New Zealand Parliament there existed conditions which justified strong judicial review. He noted that the New Zealand Parliament was a unicameral parliament which was dictated to by the executive. A Parliament which had no independent committees, and the like might be a situation in which, despite his clear scepticism, strong judicial review was appropriate.
Many of the points of criticism he makes in the article apply to the Queensland Parliament.
The Council has not, at this time, changed its position on this issue. It was always the case that in our view, the Act was not going to create some legal revolution. Its most important role would be in changing the culture, particularly in the public service. As yet, it is not clear that an assessment can be made of the outcome of that process. No doubt, this Review, will contribute to that process.
But the other part of the decision to change our position in relation to strong judicial review, to use Waldron's term, was the acknowledgement that it was politically unattainable. We do not see any reason for changing that assessment.
We would respectfully submit that the Review should rather spend its time looking at alternatives to strong judicial review, which would be to give more power to elected members of parliament. One such model is that of Sweden, a unicameral Parliament, where minorities in the Riksdag are granted, procedural rights including:
Bills affecting any right under the Human Rights Act may be held in suspense over an election at the request of ten Members of Parliament, unless 5/6th of Members of Parliament approve the Bill
If one tenth of the Members of Parliament request – and one third then vote in favour – a referendum may be held in respect to a Bill affecting any right under the Human Rights Act with the Bill being held in suspense. The referendum is held at the same time as the election[8]
8. Should victims’ rights be incorporated into the Act?
Based on our reading of the material on your website we take the reference to "victims’ rights" appears to be a reference to those rights contained in the charter of victims’ rights in the Victims of Crime Assistance Act. The QCCL is fully supportive of those rights.
We strenuously oppose any proposal to grant victims of crime a right to equal access to the criminal process. This proposition has a seductive appeal to the community’s sense of fairness. However, in our submission it represents a category error of the most egregious type. Victims' rights serve a completely different purpose aimed at ensuring recovery for individuals, not protection against state power.
In the criminal process the state, with all of its resources and powers, is attempting to deprive the accused/defendant, not the victim, of their liberty or property. As a consequence, the criminal process has established a principled asymmetry between the position of the State and the accused/defendant by the inclusion of rules such as placing the onus of proof on the Crown, establishing the standard of proof as being beyond reasonable doubt, providing the accused/defendant with a right to silence and, to the extent it remains, the rule against double jeopardy.
Defendants are guaranteed these rights not because they are valued more than victims’ rights but because they are rights against the state. They serve as essential checks against government abuse of its power.
By way of contrast, victims’ rights serve a completely different purpose. They are aimed at supporting victims in the legal process, promoting their recovery and providing them with compensation. The accused have the rights they do because getting it wrong means we imprison innocent people.
A right of equal access for victims would create conflict between the rights of defendants/accused and victims and exacerbate the inequality in the criminal justice system.
The criminal justice system cannot be turned into a vehicle for revenge or vengeance, which is likely to happen if people not subject to the duties of prosecutors to behave fairly and on the basis of an objective assessment of the case, are given control of or a say in the conduct of prosecutions.
We note in this regard that in 2022 the Supreme Court of Ohio in State v. Montgomery, 2022 WL 23472102022 (Ohio 2022) found that a law which gave the victim’s representative a right to sit at the prosecutor’s table undermined the structural integrity of the trial.
Our starting point would be that victims’ rights are adequately and appropriately protected by the current statute. However, if such rights are to be included in the Act, then it should be provided that the victim's rights shall be enforced "to the extent that they are not inconsistent with the rights of accused persons contained in this Act and any other Law”.
9. What are the future challenges to human rights you think Queensland will face?
The current intolerant and authoritarian turn in politics on both the left and the right, where your opponent is evil and needs to be destroyed and there is no room for genuine dispute about the content of a right.
[1] And of course, some might ask the question why should there only be an “adequate standard of living”? Surely other things being equal justice requires the highest possible average income, properly distributed. But that is a discussion for another day.
[2] See para 9.17 of the Report
[3] Law Institute of Victoria, Submission No 79 to the Independent Reviewer, Review of the Charter of Human Rights and Responsibilities Act 2006 (Vic), 19.
[4] Professor George Williams AO, ‘Submission to Human Rights Act Inquiry’, 11 March 2016.
[5] “The Australian Human Rights Commissions model for a Human Rights Act for Australia” speech delivered on 31 October 2023 https://humanrights.gov.au/about/news/speeches/commissions-model-human-rights-act-australia
[6] Waldron takes this position as someone who supports rights see eg Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man (Methuen, 1987) and Liberal Rights: Collected Papers 1981-1991 (Cambridge University Press, 1993)
[7] Compared to What – Judicial Activism and the New Zealand Parliament, 2005 N.Z.L.J. 441
[8] The Constitution Unit, ‘Checks and Balances in Single Chamber Parliaments: a Comparative Study’, February 1998, 14.