Although the concept of ‘human rights’ has a long history, the first modern expression of human rights was expressed in the Universal Declaration of Human Rights (UDHR) adopted by the United Nations General Assembly in 1948, following the second World War. In this, many countries, including Australia agreed on a comprehensive statement of human rights to be enjoyed by all people.
Since then, Australia has ratified many human rights treaties, and by doing so has accepted legal responsibilities for various expressions of those rights.
Over this time, some of those human rights (the subject of treaties) have been embodied in legislation. For example, the Anti-Discrimination Act 1991 which prohibits discrimination on the basis of numerous grounds including race, sex, age and impairment.
Others have become recognised common law rights, for example, the right to liberty and security of the person, the right to a fair trial, freedom of peaceful assembly, freedom of association and freedom of expression.
Human Rights Act 2019
It was not until 2019 that Qld parliament enacted the Human Rights Act which finally consolidated the human rights which have been the subject of international treaties.
The Human Rights Act 2019 is stated to be an act “to respect, protect and promote human rights”. It recognises:
1. The inherent dignity and worth of all human beings.
2. The equal and inalienable human rights of all human beings.
3. Human rights are essential in a democratic and inclusive society that respects the rule of law.
4. Human rights must be exercised in a way that respects the human rights and dignity of others.
5. Human rights should be limited only after careful consideration and should only be limited in a way that can be justified in a free and democratic society based on human dignity, equality, freedom and the rule of law.
6. Although human rights belong to all individuals, human rights have a special importance for the Aboriginal peoples and Torres Strait Islander peoples of Queensland, as Australia’s first people, with their distinctive and diverse spiritual, material and economic relationship with the lands, territories, waters, coastal seas and other resources with which they have a connection under Aboriginal tradition and Ailan Kastom. Of particular significance to Aboriginal peoples and Torres Strait Islander peoples of Queensland is the right to self-determination.
The Act is binding on all persons – including the State of Qld
This means that the Human Rights Act is a check on the power of the Qld Parliament and requires it to pass legislation compatible with those rights, and if there is any potential abrogation of those rights, to require Statements of Compatibility with Human Rights for all Bills introduced to Parliament and a system in the event of incompatibility.
What Human Rights are specifically protected?
The human rights specifically protected include the following, none of which are new, as they all originate in Australia’s acceptance of same by international treaties, as indicated below:
|Section of Act||Topic||Expression of the Human Right in the new Act||Origin of International Acceptance by us|
|15||Recognition and equality before the law||Every person has the right to recognition as a person before the law and the right to enjoy their human rights without discrimination. Every person is equal before the law and is entitled to equal protection of the law without discrimination. Every person is entitled to equal and effective protection against discrimination.||1966 – Articles 16 & 26 of International Covenant on Civil and Political Rights (“ICCPR”)|
|16||Right to Life||Every person has the right to life and the right not to be deprived of life. The right not to be deprived of life is limited to arbitrary deprivation of life.||1966 – Article 6(1) of ICCPR|
|17||Protection from torture and cruel, inhuman or degrading treatment||A person must not be tortured or treated in a way that is cruel, inhuman, or degrading. This includes that a person must not be subjected to medical or scientific experimentation or treatment unless they have given their full, free and informed consent.||1966 – Article 7 of ICCPR|
|18||Freedom from forced work||A person must not be made a slave or forced to work. Forced work does not include certain forms of work or service, such as work or service required of a person who is detained because of a lawful court order.||1966 – Article 8 of ICCPR|
|19||Freedom of movement||Every person lawfully within Queensland has the right to move freely within Queensland, enter or leave Queensland, and choose where they live.||1966 – Article 12 of the ICCPR|
|20||Freedom of thought, conscience, religion and belief||Every person has the right to think and believe what they want and to have or adopt a religion, free from external influence. This includes the freedom to demonstrate a religion individually or as part of a group, in public or in private.||1966 – Article 18 of the ICCPR|
|21||Freedom of expression||Every person has the right to hold and express an opinion, through speech, art, writing (or other forms of expression) and to seek out and receive the expression of others’ opinions||1966 – Article 19 of the ICCPR|
|22||Peaceful assembly and freedom of association||Every person has the right to join or form a group and to assemble. The right to assembly is limited to peaceful assemblies.||1966 – Articles 21 and 22 of the ICCPR|
|23||Taking part in public life||Every person in Queensland has the right and opportunity without discrimination to take part in public life. Every eligible person has the right to vote, be elected, and have access on general terms of equality to the public service and public office.||1966 – Article 25 of the ICCPR|
|24||Property rights||All persons have the right to own property alone or in association with others. A person must not be arbitrarily deprived of their property||1948 – Article 17 of the Universal Declaration of Human Rights (“UDHR”)|
|25||Privacy and reputation||A person’s privacy, family, home and correspondence must not be unlawfully or arbitrarily interfered with. A person has the right not to have their reputation unlawfully attacked.||1966 – Article 17 of the ICCPR|
|26||Protection of families and children||Families are recognised as the fundamental unit of society and are entitled to protection. Every child has the right, without discrimination, to the protection that is in their best interests as a child. Every person born in Queensland has the right to a name and to registration of birth.||1966 – Articles 23(1), 24(1) & 24(2) of the ICCPR|
|27||Cultural rights—generally||All persons with particular cultural, religious, racial and linguistic backgrounds have a right to enjoy their culture, declare and practise their religion, and use their language, in community with other persons of that background.||1966 – Article 27 of the ICCPR|
|28||Cultural rights—Aborigi nal peoples and Torres Strait Islander peoples||Aboriginal peoples and Torres Strait Islander peoples hold distinct cultural rights as Australia’s first people. They must not be denied the right, with other members of their community, to live life as an Aboriginal or Torres Strait Islander person who is free to practise their culture||1966 – Article 27 of the ICCPR and Articles 8, 25, 29 and 31 of United Nations Declaration on the Rights of Indigenous Peoples (“the UNDRIP”)|
|29||Right to liberty and security of person||Every person has the right to liberty and security. This right protects against the unlawful or arbitrary deprivation of liberty. If a person is arrested or detained, they are entitled to certain minimum rights, including the right to be brought to trial without unreasonable delay.||1966 – Articles 9 and 11 of the ICCPR|
|30||Humane treatment when deprived of liberty||A person must be treated with humanity and respect when deprived of liberty. An accused person who is detained must not be detained with convicted persons unless reasonably necessary, and must be treated in a way that is appropriate for a person who has not been convicted||1966 – Article 10(1) and 10(2)(a) of the ICCPR|
|31||Fair hearing||A person has the right to have criminal charges or civil proceedings decided by a competent, independent and impartial court or tribunal after a fair and public hearing. There is an exception to the right to a public hearing, whereby a court or tribunal may exclude certain people from a hearing if it is in the public interest or the interests of justice.||1966 – Article 14(1) of the ICCPR|
|32||Rights in criminal proceedings||A person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law, and is entitled without discrimination to receive certain minimum guarantees. A person has the right to appeal a conviction in accordance with law. A child charged with a||1966 – Article 14 of the ICCPR|
|33||Children in the criminal process||Children in the criminal process are entitled to special protections on the basis of their age. An accused child must not be detained with adults and must be brought to trial as quickly as possible. A convicted child must be treated in a way that is appropriate for their age.||1966 – Article 10(2)(b) & 10(3) of the ICCPR|
|34||Right not to be tried or punished more than once||A person must not be tried or punished more than once for an offence in relation to which they have already been finally acquitted or convicted according to law.||1966 – Article 14(7) of the ICCPR|
|35||Retrospective criminal laws||A person must not be prosecuted or punished for conduct that was not a criminal offence at the time the conduct was engaged in. A person must not receive a penalty that is greater than the penalty that applied at the time they committed the offence.||1966 – Article 15 of the ICCPR|
|36||Right to Education||Every child has the right to have access to primary and secondary education appropriate to their needs. Every person has the right to have access, based on their abilities, to further vocational education and training that is equally accessible to all.||1966 – Article 13 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”)|
|37||Right to health Services||Every person has the right to access health services without discrimination. A person must not be refused necessary emergency medical treatment.||1966 – Article 12 of ICESCR|
Statement to Accompany all Bills
The legislation requires (section 38) that all new legislation must be accompanied by a statement of compatibility with human rights, which is subject to scrutiny, with the proposed Bill. This Statement must be prepared by the member who prepared to Bill. That statement is not binding on any court or tribunal on any subsequent challenge.
This scrutiny of proposed legislation acts as a ‘human rights check’ on the power of Qld Parliament, which is particularly important in Queensland where there is no upper house.
These Rights are NOT Absolute – Override Declarations
Section 43 provides that in the event of proposed legislation being incompatible with the ‘protected’ human rights, in some circumstances, Parliament may make an ‘override declaration’ … ‘in exceptional circumstances’. If so, Parliament must provide detailed reasons and this override declaration expires after 5 years.
Example: COVID19 Restrictions on Human Rights
Exceptional circumstances arose very soon after this legislation was passed with the COVID-19 pandemic and the subsequent risks to public health.
The passing of the COVID-19 Emergency Response Act 2020 (“COVID-19 Emergency Act”) on 25 May 2020 led to many changes which potentially imposed many limitations on the rights of persons – for example:
– Freedom of movement (section 19 of the HR Act);
– Peaceful assembly and freedom of associations (section 22 of the HR Act);
– Taking part in public life (section 23 of the HR Act);
– Privacy and reputation (section 25 of the HR Act);
– Right to education (section 36 of the HR Act); and
– Right to health services (section 37 of the HR Act)
The ‘Statement of Compatibility” provided with the Bill ahead of the COVID-19 Emergency Act anticipated the above and other limitations on human rights, but concluded that despite those potential limitations, the protection of the health and safety and welfare of persons affected by the COVID-19 emergency is a legitimate objective.
It was concluded that the potential limits on human rights proposed by this Act were “reasonable and demonstrably justifiable” under section 13 of the Human Rights Act.
With no clear limits on human rights identified, the Statement concluded that the Bill is compatible with human rights under the Human Rights Act 2019 because it limits human rights only to the extent that is reasonable and demonstrably justifiable in accordance with section 13 of the Act.
Although not stated to be such, it is clearly a form of Override Declaration, justified by the public emergency of the pandemic, in line with the new legislative framework.