The Queensland Human Rights Act: more of the same
Volume 45(1) of the Alternative Law Journal celebrates Australia’s third provincial human rights law, just weeks after it commenced. Queensland’s Human Rights Act 2019 joins – and adopts substantially the same form as – the ACT’s Human Rights Act 2004 and Victoria’s Charter of Human Rights and Responsibilities Act 2006.
The Queensland Act is another step towards what could be national human rights coverage achieved through provincial legislation, except that the ‘national’ nature of the coverage would be geographic, not legal. The 12 million people who live in Australia’s three ‘human rights’ jurisdictions rely on federal services as well as local ones, but only the local services are subject to human rights laws. Federal services – such as taxation, social security, customs, immigration, higher education, fair work and telecommunications – remain free of human rights oversight.
If, however, Queensland’s human rights experience proves as unremarkable as that of the ACT and Victoria, a future federal government could be moved to pass a similar, national law, if only because it will garner kudos while causing no great inconvenience.
The ‘inconvenience’ of a human rights law is, of course, to the state: a human rights law constrains the state in its exercise of power, a step that Australian governments have been reluctant to take, and a policy that political parties have been reluctant to adopt. This reluctance was apparent in the qualified nature of the ACT and Victoria human rights laws and Queensland’s law follows suit.
On the essential question of the state’s being accountable for its breaches of human rights, Queensland disappoints, to much the same extent as do the ACT and Victoria. The Queensland Human Rights Act requires scrutiny of legislation for human rights compatibility, but incompatible legislation remains valid; it requires interpretation of legislation that is compatible with human rights, but not if doing so is contrary to Parliament’s intention; and it requires a public entity to act compatibly with human rights, but incompatible conduct remains valid. Most significantly, Queensland joins Victoria in failing to go as far as the ACT does in enabling a person to claim against a public authority for a violation of their human rights.
It is possible that the Act is a sign of new human rights consciousness in Queensland; in a country without a popular human rights sensibility, where the state is reluctant to constrain its own exercise of power, how did Queensland do it? There is a paucity of stories of law reform campaigns in Australia, and the Alternative Law Journal article by Emma Phillips and Aimee McVeigh is an important contribution to our understanding of what is involved in getting from the idea to the reality. As they tell it, the story in Queensland differs from the top-down origins of human rights laws in the ACT and Victoria, where John Stanhope and Rob Hulls made it their personal mission to pass a human rights law.
Differently, Queensland owes its Human Rights Act more to a long-running popular campaign to which, eventually, the government had to respond. The focus of the Queensland public campaign was on achieving a human rights law, not on what the provisions of the law might be. The campaign succeeded, but it is unsurprising that the provisions of the law largely replicate those in the ACT and Victoria.
So, while the Queensland Human Rights Act maintains some momentum towards national coverage of provincial human rights laws, it also tends to entrench the insipid ‘compatibility’ approach that allows governments to remain largely unaccountable for their human rights violations.
A version of this post was published in Volume 45(1) of the Alternative Law Journal as ‘Queensland’s new human rights law’.