Wednesday, October 31, 2018

Queensland's Human Rights Bill

One of the odd things about Australia is that it is almost alone in western democracies in not having formal protection for human rights. But Australia is a federation, and where the federal government sits on its hands - perhaps so it can continue its abhorrent treatment of refugees - the states will act. Victoria and the Australian capital Territory have already enshrined human rights in law, and now the state of Queensland will join them:

Queenslanders will have protections for 23 human rights enshrined in law, such as freedom of expression, religion and privacy, and a right to education and health services.


Attorney-General Yvette D'Ath on Wednesday introduced the long-awaited human rights bill into the Parliament.

Ms D'Ath said it was about changing the culture of the public sector.

"The primary aim of this bill is to ensure that respect for human rights is embedded in the culture of the Queensland public sector, and that public functions are exercised in a principled way that is compatible with human rights," she said.

"The bill will require departments, agencies and public entities to make decisions and act in a way that is consistent with human rights."

The bill is here. Comparing it to our own Bill of Rights Act, it has a similar requirement for legislation to be interpreted through the lens of the affirmed rights, and a similar requirement for bills to be assessed on introduction to parliament (though this is done by the member introducing them, and is positive - a declaration of compatibility - rather than negative - a declaration of inconsistency. Which invites all sorts of bullshit from self-interested politicians). The rights themselves are more expansive, including rights to health and education, property and culture, but apply only to natural persons - corporations have no rights. The real difference is that where a law is found to be inconsistent with human rights - that is, no rights-compatible interpretation is possible - the courts can formally issue a declaration of inconsistency, and the government must respond, and that response must be scrutinised by Parliament. On the flip side, damages in human rights suits are forbidden, meaning there's no effective means of enforcement for low-level abuses. Another weird point is that the law doesn't apply to the judiciary and courts themselves - they're required to interpret the law in a rights-consistent fashion, but have no duties to respect human rights themselves in e.g. sentencing decisions or court procedures.

There's ideas here New Zealand might want to steal when updating the BORA, but also things that don't seem like such a good idea. Still, its a huge advance for Queensland, and hopefully the federal government will eventually be forced to follow suit.