A Human Rights Act for Queensland?

As anyone who knows anything about the law in Queensland knows, there are no legal human rights in Queensland except those provided by the Australian constitution – the right to vote, the right to freedom of religion and the implied right to publish material relevant to government policy.

We do not have any legal right to make decisions about our lives, to decide where we live, where we travel, who we associate with, what we do, how we spend our money or who we have sex with. None of these life choices that most of us take for granted are legally guaranteed rights. Most of us are allowed to make all these choices as long as we do not break any law.

Australian human rights law is limited to the crime of discrimination. Discrimination is not allowing a person to do something, or have something, or to force them to do something, for any reason other than it is illegal to have, do or not do the thing.

The problem in Australian law as well as Queensland arises when the government or anyone else systematically denies human rights but does not discriminate, as specifically defined by discrimination law. For example, if the government passed a law that rounded up all the Jews in Brisbane and locked them up in Lang Park, that would be illegal because they are discriminating against Jews. However if they passed a law that rounded up all the people in Paddington and locked them up in Lang Park no law would have been broken. Detainees would have no legal human rights argument against their detention unless they could prove they were detained because of a personal attribute.

The Australian High Court has ruled a blanket extinguishment of Aboriginal Customary law. There was a time when Aboriginal cultural considerations were allowed as evidence in trials and Aboriginal cultural punishments were taken into account in sentencing, to the extent that the principle of double jeopardy, you can’t be punished twice for the same crime, was extended to include Aboriginal punishment. However it is now unlawful to raise these matters in a court. The High Court effectively criminalised Aboriginal law on the basis of the Federal Racial Discrimination Act. As Aboriginal customary law is not applicable to all Australians and because it is ethnically specific, the High Court ruled that it was discriminatory in the terms of the Act. While I am sure most Australians would assume that Aboriginal people have a human right to practice Aboriginal culture the reality is human rights law has removed this human right – in direct defiance of the recommendations of the Royal Commission into Aboriginal Deaths in custody and directly increasing the Aboriginal incarceration rate.

In Queensland, rapists, pedophiles, murderers, thugs and robbers have a legal right to trial including having the evidence against them cross-examined under oath before a court can order the removal of their liberties.  In Queensland, people with a disability, or people who someone has alleged has disability, can be subject to orders from The Queensland Civil and Administrative Tribunal to remove their legal capacity to make all personal decisions including all those mentioned above. The tribunal has no rules of evidence and accepts the opinion of Public Guardian and Public Trustee officers as fact in their determinations, even when those opinions are disputed by other parties. The legislation of the tribunal, the Guardianship and Administration Act, gives no clear indication of who should have their human rights removed, why they should be removed and to what extent they should be removed – but the tribunal routinely removes the rights of disabled people. As long as the tribunal does not discriminate, it can make up its own reasons for why a person’s rights should be removed. As the population ages the number of people caught up in this process will significantly increase yet our elders will have less human rights protection than rapists, pedophiles, murderers, thugs and robbers – unless there is legislative change.

The importance of a human rights Act is simply that it might provide enforceable human rights as defined by the various United Nations human rights instruments. At present our only enforceable right is not to be discriminated against which is just one spoke of the wheel of human rights and quite dysfunctional by itself.

There is a growing campaign for a human rights act in Queensland, lead by the Together union and spearheaded by ALP parliamentarian Peter Russo who recently moved a motion at the Qld ALP conference, that was passed unanimously, urging the Qld government to proceed in the direction of a human rights act. The game is on.

The campaign for a human rights act is referencing Victoria’s Charter of Human rights as a model for Queensland. I find this very disturbing as the Victorian charter replicates the discrimination framework and offers no protections beyond what already exists in discrimination legislation. As such, if it were applied to Queensland it would make absolutely no difference to anything, it would be just a token gesture.

If a Queensland human rights act is to be meaningful it actually has to talk about human rights, not just discrimination. It has to clearly and unambiguously define what are human rights and with equal clarity determine what will happen if these rights are denied. The first part is easy, the United Nations has already done all the work and the Federal government has already ratified it. The missing link is to make it law.

John T.


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