Law lifts bar on human rights

It has been a long journey, but Queensland has finally enacted a Human Rights Act to safeguard fundamental rights and liberties. The journey began in 1959 when the Country-Liberal coalition led by premier Frank Nicklin sought support for a new law to protect democratic rights. The law failed to pass, and debate stalled for decades.

That vision came to fruition last week when the Palaszczuk Labor government succeeded in having parliament pass a Queensland Human Rights Act. The act recognises 23 basic rights, including freedom of speech, religion and association. It is the third such law enacted in Australia, after the ACT in 2004 and Victoria in 2006.

The Queensland law is the most effective shield of basic rights so far. It extends protection to health and education services and provides a low-cost way of resolving disputes. It does these things in a way that preserves the traditional roles of parliament and the courts.

The new law is directed at improving how public services are delivered to the community. Government agencies and private bodies working for the state have a new, enforceable obligation to respect basic rights. For example, public schools, universities and local councils must ensure that “every person has the right to freedom of expression” and child protection authorities must treat children in a way that reflects their best interests. The greatest beneficiaries will be vulnerable people who rely heavily on government services in areas such as housing, health and disability support.

The Queensland Human Rights Act is directed at prevention. It recognises that the best approach is to stop breaches happening in the first place, rather than by relying on the courts to fix a problem. To achieve this, the new law sets down the protected rights as a standard for the making of new laws and policies. The idea is that rights such as freedom of speech should be a factor when laws are made, and not merely an afterthought.

The law respects the sovereignty of parliament. The act directs judges to interpret laws to comply with the protected rights, but only where this can be done in a way that complies with parliament’s intent. Where this is not possible, courts can refer the law back to parliament so that it can reconsider whether its law strikes the right balance. Parliament can choose to amend the law, or to leave it as is.

This is very different to the US Bill of Rights, which enables US courts to strike down laws. Those courts can have the final say on contentious topics including abortion and same-sex marriage. Queensland has taken the opposite approach. Its Human Rights Act instead encourages a dialogue between the arms of government about how best to respect human rights, while leaving the last word with elected representatives.

This a historic piece of legislation that raises the bar for how states serve and interact with their communities. As such a major piece of lawmaking, it has attracted surprisingly little controversy. This might be because it is a modest, well-drafted law that is tailored to our system of government and follows in the footsteps of the ACT and Victoria. Another reason might be that the reform has been championed for many years by a broad coalition of community members and organisations. They have demanded more respect and fairness from government when it comes to people’s rights.

A further reason why this law has flown under the radar is that we have moved on from earlier periods where human rights polarised debate. It has become apparent across the political spectrum that there is something broken in Australia when it comes to protecting our democratic freedoms. There is a convergence of concern, especially around the erosion of freedom of the press and rights to speech and religion.

Much of the evidence comes from conservative sources. A good example is the Institute of Public Affairs’ Legal Rights Audit Report 2018. It identifies 358 provisions of federal law alone that breach the presumption of innocence and burden of proof, natural justice, the right to silence and the privilege against self-incrimination.

The IPA found that these rights are being “persistently undermined” and that breaches “increased sharply in 2018”. This reveals difficulties with our democracy that amount to a “systemic problem”.

Queensland has responded to this problem. It has provided positive and clear protection to basic rights, including freedom of religion and speech. The other states and territories, as well as our national parliament, need to do the same.

In recent years our elected representatives have abandoned self-restraint in passing laws that take away the rights of Australian citizens. This needs to be stopped and new standards need to be set down that return power to the people and enable governments to be held to account.

George Williams is dean of law at the University of NSW.