Human Rights psychosis … Timidity takes over … Where to now for a human rights charter? … Big flunk by Queensland politicians … Victoria maybe on the cusp of a new rights scheme
THE progressive campaign for a Queensland Human Rights Act is stymied by a go-nowhere report from the parliamentary legal affairs and community safety committee.
The answer to the question whether there should be a Qld HRA was split on party lines – the LNP people saying NO, while Labor members could only go so far as recommending an Act to test whether new legislation is compatible with human rights. Even so, incompatible Bills could still be passed.
The government members specifically ruled out any role for the judiciary in the complaint process. The inquiry attracted nearly 500 submissions, the overwhelming majority in support of a Human Rights Act, in some form or other.
The Queensland report is the latest reflection of the strange Australian psychosis about human rights.
It hardly needs to be said that many common law countries have implemented various human rights models – indicating that the common law is far from the complete answer in a liberal democracy.
Judge-law has failed to provide balance to the tide of terror-related measures, anti-protest laws, marriage inequality, permanent detention without charge, invasions of privacy, Indigenous disadvantage – need we go on?
The politicians are inadequate to the task, but conservatives don’t want judges to fill the void. The anti-rights brigade simply says that the electorate can respond at the ballot box if human rights are being eroded – as though elections are conducted in a benign environment, without spin, fear, greed or money.
In any event, the human rights models under discussion are simply Acts of parliament with built-in limitations on the enforcement of rights. They can be amended or repealed at the whim of parliament, so the politicians, not the judges, are still in charge.
Somehow, “unelected” judges are anti-democratic, while do-little politicians democratically always do what’s best. This is the very notion that infected the political response to the National Human Rights Consultation chaired by Fr. Frank Brennan in 2009.
The result is that we ended up with a system of parliamentary scrutiny favoured by George Brandis, which has failed to protect people against the worst excesses of data retention and the border protection regimes.
The human rights models closest to hand – Victoria, the ACT and New Zealand – show that those jurisdictions have not fallen into the abyss as a result of the having soft rights regimes.
In the ACT for instance, the Human Rights Commissioner has said that the Act “had rarely made a difference to the actual outcome of cases, and the direct right of action remained under-utilised”.
The issue of a Human Rights Act in Australia is now entrenched in the ideological divide, where we find increasingly dotty rationalisations.
The latest comes from someone called Peter Kurti at the right-wing Centre for “Independent” Studies. Kurti complains about human rights regimes nurturing “identity politics” which, “aided by the progressive Left, threatened to foster tyranny by attacking the community’s fundamental freedoms”.
Kurti is described as an Anglican minister and researcher at the CIS and his work appears in, you guessed it, The Australian, Quadrant and The Spectator.
He’s concerned that “identity politics” is eroding free speech, in the guise of promoting equality. This, he explains, has led to the rise of Pauline Hanson.
He thinks that race discrimination commissioner Tim Soutphommasane, who has been critical of Hanson’s bigotry, should curtail his free speech. According to Kurti it was wrong for a publicly funded commissioner to be “decrying the legitimately elected members of the federal parliament”.
One person’s rights has now become a tyranny for others. Here’s Kurti in action on religion, courtesy of this CIS clip …
The Human Rights Law Centre in Melbourne is dismayed that the Queensland parliamentary committee squibbed it, saying the report fell “well short of what’s required for adequate human rights protections”.
Emily Howie, the director of advocacy and research at the HRLC, said that the proposed model for a Queensland Act merely involves parliament considering human rights when introducing a new bill.
There would be no obligations on government and no redress for citizens whose rights are violated.
In 2009 former High Court judge Michael McHugh wrote that it would be preferable if the Commonwealth parliament gave full legislative effect to the International Covenant on Civil and Political Rights and possibly even the Covenant on Economic, Social and Cultural Rights.
He said private citizens should have a judicially enforceable human rights regime. McHugh thought that a dialogue model put forward by New Matilda, which would have required courts to draw the attention of parliament to legislation that offends human rights, and for the executive to respond, would be constitutionally flawed because a court exercising federal jurisdiction would be invested with non-judicial power.
The Australian Capital Territory has the most “advanced” human rights legislation in Australia. Legislation must be interpreted by the courts in a way that is compatible with human rights; the Supreme Court can issue declarations of incompatibility (which do not affect the validity of the legislation); and it is unlawful for public authorities to act in a way incompatible with the human rights spelled out in the legislation.
There is a stand-alone cause of action for breaches of rights by public authorities, but the remedies do not include damages.
Victoria does not have a stand alone cause of action for breaches of human rights. The charter is confined, at this stage, to statements of compatibility for new legislation and new regulations must have a human rights certificate that specifies whether any limitations are justified.
People can bring Charter claims to a court or tribunal but only if they “piggy back” on another claim, such as a discrimination case.
Parliament can pass incompatible legislation and the courts cannot strike down legislation that clashes with the prescribed human rights. It amounts to a parliamentary dialogue scheme.
The Victorian Equal Opportunity and Human Rights Commission can receive complaints under the Equal Opportunity and Racial and Religious Tolerance Acts and offer a process of dispute resolution, but it cannot resolve human rights complains under the charter.
Last year Michael Brett Young conducted the eight year review of the Charter legislation for the Victorian government. He recommended a right of judicial review of decisions by government authorities that offend human rights requirements.
This is close to the remedies available under the ACT legislation. He also proposes that VCAT resolve Charter issues that have come via an ADR process at the VEO&HRC.
Attorney General Martin Pakula is scheduled to announce the government’s response to the Brett Young review at a speech on Friday (July 22) to the Castan Centre for Human Rights Law at Monash University.
The New Zealand Bill of Rights also provides for statements of legislative inconsistency by the attorney general and scrutiny by a parliamentary committee.
The legislation does not contain a provision relating to remedies and the judiciary has had the job of working out what orders can be made. The Court of Appeal has held that compensation can be obtained from government agencies for breaches of the Act.
The NZ courts can also declare an Act of parliament inconsistent with human rights, and this has occurred just once in a case where the parliament imposed a blanket ban on prisoners voting in general elections. The NZ High Court’s declaration had no effect on the legislation.
It’s a puzzle how the Dark Right has captured the human rights agenda in Australia, with arguments that can be readily demolished. The pro-rights people need to throw down some burning oil from the battlements.