How the new Queensland Human Rights Act can assist clients with disability
16th Apr 2020
On 1 January 2020, the Human Rights Act 2019 (Qld) (the Act) commenced. This was a milestone in Queensland history and the culmination of a grassroots community campaign spanning almost five years. The passage of this legislation was particularly welcomed and embraced by the community legal sector; the Act offers much-needed baseline protection, augmenting the piecemeal human rights protections of existing state laws and adding an additional tool to the human rights advocacy toolbox.
I work for a disability advocacy organisation and specialist community legal centre that seeks to promote, protect and defend the rights and lives of the most vulnerable people with disability and mental illness in Queensland. Our organisation has always advocated within a human rights framework, with our core individual advocacy work focused on assisting disempowered people whose human rights have been engaged. Key issues experienced by our clients include violence, abuse and neglect; disability discrimination; excessive and sustained involuntary treatment for mental illness; and Restrictive Practices such as seclusion or chemical restraint.
People with disability have historically been subject to some of the most significant human rights breaches, as well as intersectional disadvantage. For example, consider the vast over-representation of Aboriginal peoples with disability incarcerated in Queensland, many far removed from their cultural networks and lacking fundamental disability supports. Their treatment engages a number of human rights.
While all human rights apply to everyone who interacts with public entities, there are some human rights that are of particular significance for people with disability. Key rights to consider under the Act include:
- The right to recognition and equality before the law: which prohibits discrimination and protects positive measures, such as employment quotas and the right to access necessary supports and services.
- The right to life: which requires positive protection from real and immediate risks to life.
- The right to protection from torture or cruel, inhuman or degrading treatment or punishment: this applies in a range of settings. Cruel, inhuman or degrading treatment or punishment is a broader concept than torture and, along with physical abuse, can include acts that cause mental suffering, fear, anguish or humiliation. The treatment of Dylan Voller at the Don Dale Youth Detention Centre, which attracted significant media attention a few years ago, is a good example of conduct that may engage this right, as is the solitary confinement of a person with intellectual disability.
- The right to privacy and reputation: this is a broad right that has been relied on under human rights legislation in other jurisdictions to:
- require the provision of a shower curtain to enable a woman with disability in a group home to shower with privacy and dignity;
- protect the right of a man with physical disability living in shared supported accommodation to open his own mail; and
- challenge the use of CCTV cameras in the bedroom of a couple with disability.
- The right to protection of families: which has been relied on in other jurisdictions to keep families intact with appropriate support and prevent the forced removal of children from parents with disability – a distressingly common occurrence in Queensland. During the campaign for the Queensland Act, two factually similar scenarios were playing out in Queensland and Victoria involving the potential removal of a child from a parent with disability. The Victorian case resulted in the family remaining intact with the provision of appropriate disability supports and services, while the Queensland case resulted in the removal of the child into state care. The key difference appeared to be the existence of human rights protection offered by the Victorian Charter and the lack of equivalent protections in Queensland.
- Human rights relevant to those arrested or detained: which include the right to liberty and security of person; the right to humane treatment when deprived of liberty; the right to a fair hearing; and the rights of children in the criminal process. These will be particularly significant for people with disability who are over-represented in the criminal justice system and face significant human rights breaches during, and resulting from, their diversion from mainstream criminal justice processes (including indefinite detention, lack of disability supports and lengthy periods of solitary confinement). The new Queensland Act provides advocates with a basis to challenge some of the significant problems within prisons and detention facilities in Queensland, along with the human rights violations that can result from decisions being made by specialist tribunals that are not bound by the rules of evidence.
- The economic, social and cultural rights to education: this may be used to target the barriers to inclusive education in Queensland and to access health services without discrimination.
- The right to health services: this is a new right in Australia, which has the potential to address significant human rights breaches, including the denial of appropriate treatment, with equivalent urgency, for people with disability and the failure to ensure access to health services for incarcerated people with disability.
This list is by no means exhaustive – other key rights include freedom from forced work; freedom of movement; taking part in public life; and property rights. It should be noted that none of the new rights are absolute, yet their limitation is only permissible following careful consideration and in a way that is necessary, justifiable and proportionate.
Human rights legislation is a powerful advocacy tool for clients with disability. Advocates have an important role to play in raising human rights issues, reminding relevant decision-makers of their obligations under the legislation and helping decision-makers to understand what an outcome that respects and protects a person’s human rights looks like. This can lead to early resolution of issues before they escalate, while permitting litigation where it is needed. The training within government that has accompanied this law reform should lead to increased human rights literacy of public entity decision-makers, who are obliged to make decisions compatible with human rights and to properly consider relevant human rights in making decisions.
The Act is not perfect and will never be a panacea; but it does create important opportunities that we’ve never had before in Queensland.
Emma Phillips is Deputy Director and Principal Solicitor at Queensland Advocacy Incorporated, a specialist community legal centre and disability advocacy organisation. She holds a Bachelor of Laws (Hons 1) and a Bachelor of Arts (political theory) from the University of Queensland and a PhD in human rights law from La Trobe University. Emma commenced her career working in private practice, specialising in discrimination and industrial law and has worked in the community legal sector for many years. Emma has a keen interest in human rights protections for vulnerable people and was actively involved in the campaign for a Human Rights Act in Queensland.
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).