BY JEREMY GANS
Introducing a bill to fulfil a two-year-old election pledge on a Wednesday morning, the Queensland Premier labelled it ‘the best and surest means of maintaining for us and our posterity the human rights declared by the General Assembly of the United Nations’. The anniversary of the Universal Declaration of Human Rights was just around the corner, but his opponent wasn’t buying such appeals to history. ‘I cannot recall a single occasion when we have been obliged to listen to such political claptrap as we have this morning’, said Jim Duggan, the leader of what was left of the Labor Party after its split with the anti-Communists. It was 9 December 1959 and Frank Nicklin, in his eighteenth year (out of twenty-seven) as head of the state’s Country Party, had just introduced Australia’s first human rights bill.
Nicklin’s Constitution (Declaration of Rights) Bill 1959 was both much less and much more adventurous than the Human Rights Bill 2018 that Labor Attorney-General Yvette D’Ath tabled last Wednesday. Much less, because the Declaration of Rights protected only two human rights – to habeas corpus and to just compensation for seizures of (non-agricultural) property – while D’Ath’s bill covers the full suite of civil and political rights, and even some economic ones. Much more, because Nicklin proposed to use the Queensland Parliament’s power to bind itself with ‘manner and form’ requirements to override ‘every other law, whether made before or after the commencement of this Act’. D’Ath’s bill, by contrast, is for an ordinary Act of Parliament that eschews any and all restrictions on parliamentary sovereignty.
Introducing a bill isn’t the same as passing it. Nicklin’s proposal lapsed with an election six months later that demonstrated that the conservatives’ surprise rise to power was no flash in the pan. In his landmark report on corruption at the other end of the three decades of conservative rule, Tony Fitzgerald bemoaned the lack of civil liberties protections in the state, prompting one of the two bodies his inquiry birthed to recommend that Queensland adopt a Bill of Rights. Several changes of government later, the question was left to a parliamentary committee that instead opted to publish a forty-page Booklet of Rights for Queenslanders.
The origins of D’Ath’s Human Rights Bill 2018 are no less tortured. In 2015, hoping to unseat the Newman government and its anti-bikie crusade after a single term, Labor leader Annastacia Palaszczuk promised to ‘consult justice officials on the possibility of a new state bill of rights’. After the poll (and needing to strike a deal for minority government), she upped her pledge to ‘look[ing] at adopting a bill of rights for Queensland’. The sole result was yet another parliamentary inquiry in 2016, this time riven by pretend disagreement along party lines. Opposition members highlighted the spectre of unelected judges overruling the majority, while government members vaunted how a new statute could protect minorities. The truth was that neither side wanted anything but a paper tiger. The government members’ call for a ‘human rights act for Queensland’ came with an unwieldy caveat that the ‘judiciary have no part in any complaint process where a person is perceived to have suffered a human rights matter.’
Such pratfalls are the usual story of Australian efforts to introduce human rights laws, ranging from multiple failed referenda to the Australian Democrats blocking a 1985 government-backed Australian Bill of Rights Bill. Similar failures this century include New South Wales in 2001 (where Bob Carr’s opposition led a parliamentary committee to vehemently reject such laws), Tasmania in 2007 (where Lara Giddings rejected her own commissioned law reform inquiry recommending a robust rights statute, ordering a second departmental inquiry that fizzled once she became premier), Western Australia also in 2007 (where a change of government sidelined a community consultation led by Professor George Williams) and the federal Parliament in 2010 (where a faltering Kevin Rudd ditched the national consultation report he ordered in favour of a sub-minimalist ‘rights framework’.)
But there were also two successes that decade, in the ACT in 2004 and Victoria in 2006, which followed very similar paths to success. In each jurisdiction, the entire idea for a local human rights law was conceived, consulted on and enacted entirely within a single election cycle. As well, traditional institutional and parliamentary processes were eschewed in favour of ad hoc panels that claimed to be only interested in consulting ‘the community’. There were some variations – Victoria opted for a basketballer rather than a poet as the lay member of its consultation panel, and its government took fewer risks in its community consultation, front-ending it with a detailed statement of what its panel should find – but the common feature was sidelining the political process as much as possible. Such an approach isn’t always enough to get a rights law enacted (see the 2009 federal consultation) but, until now, it has always been assumed by all proponents to be necessary.
The most daring thing about the Queensland process is that it completely ignores this received wisdom. On 16 November 2016, Premier Palaszczuk used her keynote at the state ALP conference to briefly announce that ‘cabinet has agreed to introduce a Human Rights Act for Queensland based on the Victorian Charter of Human Rights and Responsibilities’, sidelining her own backbenchers’ contrary recommendation. A year later the same pledge was part of the ALP’s state platform ahead of the 2017 election, which the government won in its own right. Introduction of the Human Rights Bill 2018 followed a further year of wholly internal government deliberation without any public consultation.
The Bill’s first public examination will come when it is examined by a portfolio committee – the very one that rejected any ‘judicial’ role in human rights matters in 2016. In lieu of any consultation reports like those that preceded the ACT and Victorian laws, the sole explanation of the thinking behind D’Ath’s proposal is in the Human Rights Bill’s detailed explanatory notes. These declare that the new law ‘is specific to the State of Queensland, and is not uniform with or complementary to legislation of the Commonwealth or another State’, while allowing that it ‘is based on a model of human rights legislation that is broadly consistent with the Victorian Charter and the ACT Human Rights Act.’ This is parochial nonsense. The Human Rights Bill 2018 is a close copy of Victoria’s Charter in its structure and many of its weirdest details.
Notably, all of the Victorian Charter’s operative provisions are there, in virtually identical language: reasonable limits on rights, statements of compatibility for bills, human rights certificates for regulations, parliamentary committee scrutiny, weak rights-consistent interpretation, heavily caveated obligations of public authorities (sorry, ‘entities’), interventions by the Attorney-General and the (newly renamed) Queensland Human Rights Commission, a notice requirement for rights claimants, twin four-yearly statutory reviews, the lot. Even Victoria’s bizarre scheme for ‘override declarations’ – where later statutes can expressly displace the new law ‘in exceptional circumstances’ – is picked up verbatim, despite such a process being wholly unnecessary in an ordinary statute.
Why anyone would opt to copy the bulk of Victoria’s Charter is beyond me. In 2008, the first year of the Charter’s full operation, I spent the entire year blogging how the Charter’s many clumsy provisions repeatedly tripped up lawyers and judges alike. Examples that loomed large that year included an apparent typo in the Charter’s application clause that gave mysterious and unenumerated human rights ‘functions’ to its courts and tribunals and an overbroad transitional clause that fluffs the Charter’s staged commencement. Astonishingly, each of these provisions appears in D’Ath’s bill. In 2020, the proposed first full year of operation of the Human Rights Act 2019, I predict that I could rerun my 2008 blog verbatim.
Much the same is true of the Charter’s core provisions that were exposed by the courts as unworkable four years in. In 2011, Victoria’s Court of Appeal held that the Charter’s convoluted ‘piggy back’ provision for court remedies meant that many minor human rights claims – notably those by public tenants facing imminent eviction into homelessness – must be brought in the state’s expensive Supreme Court, rather than its coalface civil and administrative tribunal. A few weeks later, in the notorious Momcilovic v The Queen, the High Court of Australia almost invalidated the Charter’s provision for court declarations of incompatibility and, much worse, split on its meaning in a way that left the provision wholly unworkable. The Victorian government’s response? Nothing. Both provisions remain unamended. The Queensland drafters’ response? Copy both provisions almost verbatim into the Human Rights Bill 2018. It’s as if a hobbled human rights law suits both governments just fine.
The story isn’t all negative. D’Ath’s proposal improves on Victoria’s in many small ways, in some cases reflecting recommendations made by a statutory review of Victoria’s Charter three years ago that Victoria is yet to implement. The standout changes are a compelled conciliation power for the new Queensland Human Rights Commission (albeit with only public reports to punish the uncooperative) and expanded or new protections for economic rights to ‘own’ property and to ‘access’ health services and education (boldly omitting the caveats to the latter right that were included in the ACT’s human rights law.) In their efforts to correct the Charter’s myriad technical problems, D’Ath’s drafters more than doubled the length of the Victorian statute, including defining the central concept of ‘compatibility with human rights’ and omitting unnecessary limitations on the civil and political rights, such as limits on freedom of expression and confrontation and the exclusion of birth registration rights. Mercifully, D’Ath also declined to copy the unwieldy, depressing and Orwellian title Victoria’s Rob Hulls devised for his Charter of Human Rights and Responsibilities.
Alas, as also happened in Victoria, the Queensland government has already signalled its lack of confidence in its new law. The right to self-determination that heads both major international human rights treaties is missing from the list of rights in Part 2 of D’Ath’s bill, relegated instead to an unenforceable preamble. Savings clauses shield both the federal native title regime and the recently enacted Termination of Pregnancy Act from the new statute completely. The D’Ath bill also amends Queensland’s corrections statutes to partially shield the state’s prison authorities from being required to respect prisoners’ rights to humane treatment. These decisions imply that the state government either knows that existing Queensland limitations on human rights cannot be justified or fears the political consequences of a mere ‘human rights dialogue’ when it comes to these hot-button topics.
‘The worst revolutions of all are bloodless’, observed Jim Burrows, a former journalist nearing the end of his fifteen years as a Queensland Labor MP on 9 December 1959. He wasn’t promoting the virtue of conflict, but rather the soft dangers of political transformation effected through mere opportunity, rather than convictions, courage or necessity. Nicklin’s Declaration of Rights, Burrows concluded, ‘is just so much window-dressing and a repetition of a lot of cant, humbug and hypocrisy.’ He would surely have said the same of D’Ath’s bill, which promises to ‘respect, protect and promote’ Queenslanders’ rights, but instead only offers a hobbled statute from two states to the south that is already being isolated from hard political questions.
Jeremy Gans is a Professor in Melbourne Law School.
Suggested citation: Jeremy Gans, ‘Northern Rights, Southern Law: Queensland’s Proposed New Human Rights Statute’ on AUSPUBLAW (7 November 2018) <https://auspublaw.org/2018/11/northern-rights-southern-law-queenslands-proposed-new-human-rights-statute/>.