Charting New Waters for a Queensland Bill of Rights - Part A
29th Jan 2016
“Land ahoy!” In the distance, the parliamentary promise of a more just, accountable, compassionate, tolerant and democratic society looms large on the political agenda for Queensland in 2016.
On 29 October 2014, independent MP the Hon Peter Wellington, now Speaker of the Qld Legislative Assembly, stated in Parliament:
“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. We have seen the way this Liberal National Party government interferes in the powers of the court, and I believe it is time for an act of parliament that enshrines the rights and liberties we value as important.”
In February 2015, a parliamentary inquiry for a Queensland bill of rights became a term stipulated in the letters of exchange on Government in Confidence motions between Premier Palaszczuk and Mr Wellington which allowed the formation of the minority ALP government. Mr Wellington’s vision was unfurled as follows:
“My proposed bill of rights will protect the rights and liberties of all Queensland citizens such as everyone is equal before the law, freedom of expression, freedom of association, freedom of peaceful assembly and you are deemed innocent until proven guilty. My bill of rights will provide a specific act of parliament to fill the void in our current legislation. It will formalise a protection of rights we consider fundamental to our democratic system of government. It will place new responsibilities on the Attorney-General, as Queensland’s first law officer, to report to parliament if any proposed law or regulation is inconsistent with any of the fundamental rights set out in the bill. It will make sure members of parliament will remain accountable to the people who elect them, and it will be clear that the freedom and rights in the bill are subject to such reasonable limitations as can be justified in a free and democratic society based on human dignity, equality and freedom.”
On 3 December 2015, Queensland Attorney General Yvette D’Ath referred the issue of a Human Rights Act for Queensland to the Legal Affairs and Community Safety Committee with some very broad and comparatively inquisitive terms of reference.
Human rights are of course nothing new. In fact, all of the world’s major religions for thousands of years have been premised upon the principles of tolerance, respect, compassion and dignity – the same powerful principles that underpin the modern understanding of ‘human rights’ in international and domestic law. When the United Nations was forged in a post-WWII world, hungry for human rights and reeling from the incomprehensible horrors of the holocaust, the most fundamental human rights were codified and articulated in the Universal Declaration of Human Rights (UDHR). Such rights (including rights to freedom of expression, freedom of religion, freedom of association, equality before the law, employment and housing, to name a few) are uncontroversial assertions of what collective humanity should aspire to provide all individuals as a minimum, including the most vulnerable and marginalised members of our societies. The assurance of legal protection for basic human rights is the true mark of ‘civilisation’ (whose etymology actually stems from ‘the opposite of barbarity’).
Opposition to the legal protection of basic human rights, for whatever reason, is therefore perplexing – whether it is the spurious ‘unelected judiciary’ mythology or the unfounded claim that ‘representative democracy’ is sufficient to protect basic human rights (it does not – the evidence is voluminous and clear). Such opposition to human rights usually masks hidden agendas as we have witnessed repeatedly in Australia, but most notably during the unprecedented, comprehensive national human rights public consultation led by Frank Brennan in 2008-9.
That Australia has no bill of rights is a curious anomaly of history and racism. While our founding fathers were enamoured of the American constitution when drafting ours, the majority of them were sternly opposed to a bill of rights for fear it would disproportionately (or even proportionately) empower migrants and Chinese workers on the goldfields. Yet, ironically, our direct involvement was instrumental in the drafting and adoption of the international bill of rights. Australia was one of the eight member drafting party headed by the visionary Eleanor Roosevelt. The UDHR was adopted by the UN General Assembly on 10 December 1948 under the guidance of Australian UNGA President, the indefatigable Doc Evatt. The UDHR spawned the era of international human rights law and of global civilisation, guided by the UN.
While Australia has tried and failed numerous times to federally adopt a constitutional bill of rights or a legislative human rights act, only the ACT and Victoria have succeeded in adopting localised legislative charters. Interestingly, the first attempt at adopting a bill of rights in Australia was in 1959 by the conservative Nicklin country party in perhaps the most conservative state, Queensland. But, then again, human rights are neither conservative nor radical. By their nature, human rights are so fundamental to the experience of being human that they should be immune from political interference and constitutionally enshrined. However, where that is not possible – including due to the practical obstacles of constitutional reform – they should at least enjoy some legal protection.
In recent years, the international community has championed the cause for an Australian Charter of Rights at our two Universal Periodic Reviews before the UN Human Rights Council, in January 2011 and November 2015. However, since the Rudd government failed to take the Brennan Inquiry’s unprecedented success over the line and plant the seed for a new vision of Australia by way of the highly recommended Human Rights Act, some commentators have suggested that Australia is not yet mature enough to adopt a federal Charter of Rights until another state or territory has one: enter the sunshine state: right place, right time!
This is the first article in a two-part series. You can read part A here.
Benedict Coyne is a human rights lawyer and advocate at Boe Williams Anderson in Brisbane. He is currently running a diverse array of cases including; Aboriginal deaths in custody; indigenous rights and climate change; racial discrimination complaints; children’s rights; employment rights; education rights; international criminal law and international business & human rights. For the past three years he has served as a national committee member and Qld State Convenor of Australian Lawyers for Human Rights (ALHR). In December 2014 he formed the national ALHR Human Rights Act subcommittee which he chairs and in February 2015 he co-spearheaded the movement for a Qld Charter of Rights which is no before a Parliamentary Committee of Inquiry. He recently completed a Master of Studies in International Human Rights Law at the University of Oxford where he wrote his dissertation on Australia’s need for a federal human rights act.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).