The passage of the Human Rights Act strengthens democracy and the accountability of governments. But there remains work to be done, writes lawyer Benedict Coyne.
Do politicians really represent their constituents?
Do politicians really care about our rights?
Those questions were answered in more ways than one in Queensland Parliament last week. Wednesday witnessed a remarkable and historic triumph for Queenslanders in holding parliamentary power to account by the people via the passage of the Human Rights Act 2019.
The first attempt at a bill of rights in Queensland, and Australia, was by the conservative Nicklin Country Liberal Party Government in 1959.
Better 60 years late than never…
On 19 February 2015, in the lunch line at the Australian Human Rights Commission (AHRC), Sydney, the movement for a Queensland Human Rights Act was born.
I spotted one of my academic idols, Professor George Williams, during a break at the RDA 40+ conference, celebrating the 40th anniversary of the Racial Discrimination Act 1975.
At the time I was deeply engaged in drafting my Master’s dissertation for International Human Rights Law at Oxford University on why Australia had consistently failed to legally protect universally recognised basic human rights and freedoms as required by the delicate quid pro quo handshake of international law, including via a federal Human Rights Act.
In 2009, I was present at the final NGO roundtable at the AHRC in the despondent days after then-PM Kevin Rudd dismissed the Brennan Inquiry’s recommendation for a Federal Human Rights Act from the unprecedented national public inquiry and consultation, which harnessed over 35,000 public submissions over 85% of which called for a federal charter.
Notwithstanding the unprecedented public interest sent many-a-pollies’ pants to the dry cleaners, Rudd reportedly dismissed it outright as a “shit sandwich” and instead implemented the profoundly ineffective Human Rights Framework — a toothless skeleton.
Oh, how history will judge us and begrudge us for yet another squandered opportunity to federally protect rights at law in the still "wild colonial lands" of Australia.
In December 2014, I established a national Human Rights Act subcommittee at Australian Lawyers for Human Rights (ALHR) to reignite the fight for a rights Act.
Back in the lunch line, I was excitedly pitching Professor Williams my idea to reignite the fight for rights via the ALHR HRA subcommittee I had established and a movement for a federal charter.
Williams offered sage advice: Australia probably isn’t quite ready for a federal charter just yet, so better to raise the consciousness and rights literacy of Australia by lobbying for states and territories to follow Victoria and ACT and introduce human rights Acts.
Back in Queensland, independent MP Peter Wellington’s was calling for a bill of rights during the dying days of the explosive Newman Government. On 29 October 2014, he moved a motion stating:
Recently I spoke about the need for a bill of rights to protect the rights and liberties of Queenslanders against this Liberal National Party Government’s abuse of power. Queensland has no upper house or house of review, and the current committee system is not able to properly provide the necessary checks and balances on the excesses of this state government.
I believe the 2 and a half years of abuse of power we have suffered under this State Government has mobilised Queenslanders to call for a specific Act of Parliament which would protect us from extreme governments and recognise and enshrine the many rights and liberties we have traditionally taken for granted. We are not alone in our calls for protection from a Government that abuses its power.
The Australian Capital Territory passed its human rights act in 2004 and in 2006 the Victorian Government adopted a Charter of Human Rights and Responsibilities. New Zealand has had a bill of rights since 1990 and Canada has had a bill of rights since the 1980s.
Four long years later it was a pleasure to be sitting in the public gallery in Queensland Parliament to witness the passage of the bill.
Four long years later, after many, many, meetings with community groups, with frontbench MPs, with backbench MPs, with opposition MPs.
Four years that required huge hope, patience and persistence by our core group of operators constantly battling the seemingly impenetrable wall of politicians’ ignorance about law and the legal reasons for rights protections.
But in the face of that significant and entrenched adversity: “Yes we did!”
The Act still has significant deficiencies, but it is a good start.
One significant deficiency is that compensation is not available for people who have their rights breached.
Every citizen and non-citizen already have the right to sue for compensation at common law and statute for a wide range of torts and legal infringements.
Why rights protected in a “Human Rights Act” should be relegated a subordinate status than even the common law is a bizarre aberration.
It is unclear why such anomaly exists except as an awkwardly attempted placation of the hysteria emanating from conservative benches snickering some contrived conniptions about “unelected judges” and “the supremacy of the Parliament will be undermined” (all of which translates to “don’t mess with our power!”).
Leaving aside the facts that libertarians are ostensibly ideologically committed to protecting individuals’ rights, I have always found such arguments perplexing.
What do they think our judges do day-after-day in our law courts assessing, analysing and interpreting legislation?
Yes, they make law.
What is the common law other than law created by unelected judges?
Didn’t we in Australia elect to have unelected judges because we don’t want an openly partisan American-style elected judiciary?
That this “unelected judges” hoo-ha ever got any traction and received more than a curt dismissal from a reasonably-minded audience is remarkable. Then again, that’s why it has probably garnered so much ground in the Murdoch media.
It was a fiery debate that raged over two days. Whilst invigorating to see such a vibrant philosophical parliamentary debate, it was notable, interesting, and at times disturbing, the myriad misconceptions in the speeches given in opposition to the Human Rights Bill 2018.
At times they were right on point historically and even philosophically, however their application was profoundly misconceived by proclaiming some mythic and vast unimpeachable integrity of the Westminster system and common law in and of themselves such that they required not added buttressing by bills of rights.
The aptly named Mr Linus Power, Member for Logan, dealt with such display in masterful short shrift:
Some in this place make all the right platitudes ... They say that we already have protections, such as the Magna Carta, which is a document that was abolished soon after it was created and explicitly restricted the rights of certain citizens.
They cite the common law. We know we have the ability to make laws to override the common law, unlike a constitution. They refer to one thousand years of the Westminster system, our courts, democracy and sceptical media. Obviously, all of those are important.
However, we know that neither 1,000 years of the Westminster system nor the common law prevent egregious breaches of human rights … That system also fed into laws made in this parliament such as the Aboriginal ‘protection’ act…
Mr Power continued:
"Why didn’t the Magna Carta, the common law or one thousand years of Westminster democracy protect Aboriginal Australians whose human rights were so badly trampled upon?"
Hard to argue with that.
Mark Bailey, the Minister for Transport summed it up well in stating:
“People’s rights were trampled on and removed by both the Bjelke-Petersen and Newman Governments [whose] excesses lead to corruption in government, in the private sector and even in the police force of the time.
I believe that we should legislate against discrimination and set the standard in our community to prevent powerful people and powerful governments from oppressing others unreasonably.”
Greens MP for Maiwar, Michael Berkman, spoke in support of the bill but also identified glaring omissions and missed opportunities such as failures:
- To recognise the explicit right to a healthy and safe environment, currently recognised by over 90 nations’ constitutions;
- To reduce incarceration rates for Indigenous Queenslanders;
- To help reduce high suicide rates for Indigenous people in custody — a critical element of the Closing the Gap strategy; and
- To protect a child’s fundamental human rights in detention.
All the oppositional arguments appeared to assume that our elected representatives actually represent their constituents’ interests. Illusory stuff.
Yet, as our democracy has become increasingly corporatised via the major parties’ reliance on corporate donations, the question remains: how can politicians represent you when they’re given millions to represent someone else?
Interestingly, there was a lot of quoting former NSW Premier (and known opponent of human rights Acts) Bob Carr from oppositional benches. LNP Member for Ninderry Dan Purdie concluded with:
Parliaments are elected to make laws. In doing so, they make judgements about how the rights and interests of the public should be balanced. Views will differ in any given case about whether the judgement is correct.
If it is unacceptable the community can make its views known at elections. A bill of rights is an admission of the failure of parliaments, governments and the people to behave reasonably, responsibly and respectfully.
Again, this assumes that politicians can be trusted. And whilst they might believe so in their buttressed bubbles, the people have been burnt one too many times by politicians’ promises and misdemeanours to know that we need a bulwark against inherent parliamentary dysfunction and the corruptibility of power.
The Human Rights Act represents the responsible and reasonable transfer of power back to the people, it makes power accountable. And that is why some politicians don’t like it!
Benedict Coyne is an international human rights lawyer, former national President of Australian Lawyers for Human Rights (ALHR) and Greens Candidate for Dickson, running against Peter Dutton. You can follow Benedict on Twitter @bennarama.