Background
On 1 January 2020 the Human Rights Act 2019 (henceforth ‘the Act’) commenced operation in Queensland, enacting twenty-three human rights to form the foundation from which to build a stronger human rights culture in Queensland’s public sector. The newly established Queensland Human Rights Commission will be responsible for reviewing the Act in late 2023, and again in late 2027. Resultantly, it is necessary to start considering how best to conduct the first four-year evaluation.
On Friday 13th March, members of the Queensland human rights community joined by experts from Victoria and the Australian Capital Territory convened to discuss the upcoming revision process. Leading agenda items included considering what lessons could be learned from other jurisdictions with human rights legislation, best practice for data collection and analysis, how different stakeholders within Queensland communities might measure success, and how a proactive approach to implementation might be maintained. This report seeks to summarise the discussion between attendees, which included representatives from the Queensland Human Rights Council, the Queensland Department of Justice and Attorney-General, Victorian and ACT governments, the Queensland Bar Association, the community legal sector, as well as academics from various universities.
Other Jurisdictions: Lessons Learned
Victoria
Delegates agreed that many lessons can be learned from the review processes in jurisdictions where human rights legislation has already been implemented. Victoria was a pertinent point of comparison given the similarity between the Charter of Human Rights and Responsibilities 2006 (Vic) (‘the Charter’) and the Queensland Act. Two reviews have been conducted of the Charter thus far — in 2011 and 2015 — which each provided unique lessons. Both were conducted within the 10 months after a state election, meaning that the respective governments of the day could appoint review committees conducive to their interests and lessen the opportunity for electoral pressure.
The 2011 review, despite being conducted by a largely conservative review committee (i.e. less receptive to codifying human rights), was nonetheless rigorous. The review body recommended that the parliamentary elements of the Charter remain as they are, and the powers bestowed upon the judiciary (namely issuing statements of incompatibility) be repealed. Neither recommendation was implemented.
Michael Brett Young spearheaded the 2015 Charter review, which contained 52 recommendations. One such recommendation was the right to complain for breaches of human rights; this suggestion which was acknowledged and then effectively pushed aside by the Victorian government. Indeed, a bill was tabled before parliament to implement the recommendations in Young’s report, but it was unsuccessful. His review also suggested doing away with the so-called ‘piggyback clause’ contained in the Charter, which requires that victims have an existing action under another act in order to be able to take legal action against public entities for human rights breaches. The Victorian Parliament has not implemented this recommendation either. The Queensland Act mirrors this provision and the forum agreed that it should be repealed entirely for the Act to become fully-fledged.
The ACT
The panel also discussed the ACT’s Human Rights Act 2004 (‘the ACT Act’) review framework, and the distinct lessons it proffers. A recommendation set forth in the 12-month review was that the ACT Act should provide for standalone legal action for human rights breaches by public entities. Unlike Victoria, the Parliament of the ACT did accept this recommendation and amended the ACT Act with a clause permitting victims to be heard by the Supreme Court, which delegates agreed would be positive if reflected in Queensland.
The ACT Act diverges from the Queensland Act in two significant ways. Firstly, it does not provide for a formal complaint mechanism, and secondly, it does not give the judiciary the power to issue statements of incompatibility. Both of these characteristics have proven to be nonissues because of the informal ways in which ACT’s institutions have adapted. In place of a formal complaint body, a system of informal complaints has arisen. In lieu of judicial statements of incompatibility, human rights experts are allowed access to parliamentary submissions so they may advise on their compatibility to the ACT Act. Subsequently, no incompatible acts have passed through parliament. Queensland has implemented a similar thematic human rights committee to this end. Further, it was found that all prior acts deemed incompatible were already under examination by various bodies who were cognizant of the ACT Act. If, for some reason, these two provisions are repealed in Queensland then we might look to the ACT for guidance in these respects.
Data Collection & Analysis: Best Practice
The primary objective of the Act is to build a culture of respect and promotion of human rights within the Queensland public sector. Determining whether this objective is met will require monitoring whether there is a visible, evidence-based improvement in the status, handling and understanding of the 23 newly legislated rights. In preparation, one speaker has begun considering what data can be collected that would be indicative of the improvement of rights in the state. Subsequently, they have made use of a program called ‘LexisAnswer’ which analyses large data sets of media text to examine the discourse surrounding the Act. Positive and negative values are assigned to particular words, and then the relevant piece of text is assessed to determine whether it reflects a positive or negative opinion toward the Act. This coming year, the program will be used to conduct a large-scale analysis of public perspectives surrounding the Act through human rights media coverage.
Appropriate analysis of the media will be integral to assessing the implementation of and public perspectives surrounding the Act, as narrative is hugely important where public opinion is concerned. While there was relatively little public knowledge of the Act in the lead up to its passing, LexisAnswer had already been used to analyse the discourse that occurred prior to and during parliamentary debate on its introduction. This expert determined that the primary theme which had emerged in the lead up to the Act’s passing was fear, with discourse centring on how Queensland was being threatened by increased power for the courts, parliament and religious institutions. Fundamentally, this expert determined, the main fear was about protecting sameness.
Further data that was noted as being necessary to effectively review the efficacy of the Act was: the monitoring of ongoing discourse occurring within government surrounding the Act; comparing policy frameworks with service delivery, to assess whether human rights have been integrated into public services or swept aside; an assessment of the economic benefits; and, the introduction of reporting when public entities receive complaints made under section 58 of the Act (conduct of public entities).
Beyond quantitative data collection, the panel further discussed the necessity of obtaining qualitative data, particularly from those members of the community whose lives will be impacted by the Act. It was acknowledged that there is a difficulty in capturing people’s stories without abrogating duties of confidentiality. Generally, when stories are collected from the community, they are de-identified — that is, traits about an individual (such as their age or gender) are changed to protect their privacy. However, erasing the particular traits surrounding an individual inevitably removes part of their experience, and thus our ability to assess the implementation of the Act with a view towards intersectionality.
Success as Defined by Stakeholders
Intersectionality
A primary concern that emerged in discussion was intersectionality, and exploring what “success” would look like in practice for different stakeholders. Three particular marginalised groups focussed on by panellists were the Indigenous population, people with disabilities, and RRR (rural, regional and remote) communities.
First Nations People
It was acknowledged that the Act has special significance for Indigenous Australians, who are routinely treated less favourably by Queensland public services like Queensland Health, the Department of Education, and the Department of Child Safety, Youth and Women. One speaker remarked that ‘we cannot think of Indigenous Australia’s interaction with government without contextualising it historically — all issues are legacy issues’. Indeed, it was only in 2019 that the Queensland Government settled the Palm Island stolen wages case for $190 million — an estimated $210 million short of the total amount rightfully owed to Indigenous workers who went unpaid between 1939 and 1972. Success for Indigenous Australians will be seen in the Queensland Police and Department of Child Services finally ending the perpetuation of Protection Act era behaviours — ‘there must be an end to this conduct’. Through the Act, it is hoped that our First Nations population are given a mechanism through which to assert their autonomy and self-determination.
Disabilities
Disability discrimination was described as the most common form of discrimination at both state and federal service level. One delegate outlined that people with disabilities are regularly dealt with inappropriately by disability service providers and tend to have incredibly negative interactions with the criminal justice system. Significant issues within the Queensland education system, as well as the continuance of sheltered workplaces (where people with disabilities are separated from people without them) demonstrate a continuing denial of autonomy and choice for people with disabilities. Success in the implementation of the Act for people with disabilities would be clearly exhibited quantitatively — a decrease in the number of people in prison and institutional settings — as well as qualitatively in the report of the reduction of the use of restrictive practices.
RRR Communities
‘Human rights are not equally distributed in Queensland’ stated one speaker. The forum discussed how inequality generally worsens with regional placement, and is particularly evident in issues surrounding poverty, youth suicide, health and access to water. Vulnerability is multilayered for RRR individuals who are elderly, Indigenous, or part of other vulnerable groups. Due to the compounding issues that affect people within RRR communities, success must be measured differently, taking into account the added complexities of human rights challenges faced by members of these communities.
Considerations of intersectionality, the forum agreed, are a primary consideration when embarking on a review of the Act. It is integral that we are cognisant of the fact that success will look different from different perspectives.
Government
The delegates contemplated that the government’s view of the success of the Act may be largely based around cost/benefit considerations and viewed through the lens of party priorities. These priorities are fluid and can shift rapidly with a change of government — conservative governments are generally more hesitant to codify and enforce human rights than progressive governments.
The difficultly of procuring government funding under a human rights banner was discussed. Indeed, framing such requests in light of cabinet’s present concerns can be strategic given that realistically, ministers make their decisions on political bases (despite the forum’s preference for human rights considerations being at the forefront). This can be achieved by tapping into the Queensland human rights community, with one speaker encouraging delegates to ‘get your economist friends onside’ to help present human rights in an economically palatable manner — although qualifying that human rights are, of course, not commodifiable.
The parliamentary discourse surrounding human rights legislation can range from inspiring to downright problematic, with a keynote speaker quoting an MP who touted the Act as ‘political correctness gone mad’ and regarded its adoption as ‘mindlessly following the Labor left of the ACT and Victoria on a race to the socialist bottom.’ With rhetoric such as this, how can the government be encouraged to prioritise human rights in the long-run? One speaker remarked that there is a need for maturity in leadership, with emphasis on human rights being consistent and sustained. This can be aided by pressure from the human rights community and wider public asking politicians how they intend to implement rights in their policies.
The Public Service
Delegates were divided on public servants’ view toward implementing human rights in their roles — and indeed both schools of thought may prove correct across the vast landscape of the Queensland public sector. Some had experienced public servants to be ambivalent about human rights, while others maintained that it wasn’t a lack of care, but of training and pragmatic tools that prevented implementation of rights. Further still, one delegate noted that the level of rights awareness in a public entity could flux and flow depending on the minister responsible, and how seriously that minister took such responsibilities. In either case, it was agreed that advocates for human rights are competing for cognitive space in the minds of public servants, who have numerous, oft-conflicting priorities to consider in the course of their duties. The Act can be used as a tool to raise the standard of how public entities protect human rights and establish a culture in public service where human rights are respected and promoted, pursuant to the purposes of the Act.
It was suggested that appointing human rights champions in lofty positions within public entities would be an effective way to fast-track a human rights culture. One example was in the Queensland Police Service in rural areas, where discrimination toward Indigenous youth is systematic (made apparent by the huge disparity between Indigenous and non-Indigenous incarceration rates). A public official with human rights training and intersectional awareness may be the disruption needed to shake this entrenched racism.
The Legal Profession
Another stakeholder group with divided opinions on human rights legislation are legal professionals. When acts were introduced in other jurisdictions, solicitors and barristers initially approached them with trepidation, given the uncertainty of outcomes due to a lack of established common law. Lawyers were rightly reluctant to use their clients’ matters as test cases lest they jeopardise their chance of success thereby discharging their duty to client. In human rights cases, there are often multiple rights breached, and without sufficient precedent it can prove difficult to choose which right to pursue to secure the best outcome. Class action suits can be a useful tool in creating human rights precedent, however actions with higher prospects of success will attract funding, so should be chosen strategically in the Act’s nascent stages. More recently, lawyers in the ACT have been making use of their human rights statute, especially in housing disputes. Victorian practitioners, however, have maintained caution, preferring to employ other acts to the same ends.
Civil Society
It is expected that most individuals will not interact with the Act — so, what will success look like to the general public? Fundamentally, delegates decided, it would look like an awareness and embracing of the Act. It is difficult to know fully what the knowledge and perspectives of the general public were in the lead up to the introduction of the Act, as parliamentary discussion surrounding its introduction was strategically quelled. However, members of the public that were aware of the Act were generally supportive. Indeed, the campaign for its introduction was grassroots with primarily social media based support — it had no real government funding and was spearheaded by volunteers with little resources. Despite this, the 2015 Human Rights Inquiry into introducing human rights legislation in Queensland received the highest ever number of inquiry submissions. Despite this success to date, however, one speaker sought to point out that we must remember that promoting the Act will be an ongoing process as there will inevitably be a waxing and waning of support — ‘you cannot rest on your laurels once you’ve got an Act’.
Crafting a Human Rights Narrative
A key topic of discussion was how to maintain public support for the Human Rights Act, and media was presented as a crucial tool. The effect that media can have in shifting public opinion surrounding the introduction of legislation has already been clearly exhibited. Cinema after Mabo and the introduction of the Native Title Act 1993 shifted the narrative drastically, reinterpreting how the relationships between indigenous people and country and indigenous people and non-indigenous people are perceived by the Australian public. Forum discussion centred on how to strategically build a narrative so that the average Australian would understand the positive impact that the Act will have on their everyday life. Good news stories about how the Act is benefitting communities was posited as a way to generate this support, however there have been issues with the media negatively misconstruing the Act’s involvement in previous cases. It was suggested that this was the result of journalists not understanding the role of Act in the circumstances, and proposed that discussion should focus on bringing the media ‘on board’ in support of the Act. Perhaps there should be a greater connection between journalists and human rights experts, so the latter can assist the former in correctly interpreting the outcome of cases that emerge from the legislation.
Human Rights Networks
A salient point of discussion at the workshop was the importance of human rights networks in helping to establish the Act and reinforce a culture of human rights. One speaker recounted an instance where the rights of prisoners were being breached by illegal strip searches. The Human Rights Commission teamed up with the ombudsman and other relevant parties in co-signing a letter calling for this to cease, and for greater enforcement of the legislative instrument. This led to swift action and reform of the institutional practices, showing just how powerful networks can be. Delegates were encouraged to ‘find out who your friends are!’
Next Steps: A Proactive Approach & Education
Although delegates came together to celebrate the hard-won victory of a Human Rights Act in Queensland, there was a collective awareness that the work had just begun. Revolving-door governments pose risks of repeal or undesirable amendments and defunding of vital human rights programs. The workshop’s human rights community agreed that they must remain on the front foot, implementing a proactive agenda rather than a reactive approach.
The cornerstone of this is education, which will be a key tool in developing support for the Act and human rights more broadly. This education, whether formal or informal, should be available to (or indeed mandatory for) public servants, legal practitioners, government ministers and broader society — one panellist even suggested that human rights be taught to primary school students! Such education might be achieved through workplace training, school programs or even media exposure. A delegate recalled seeing a children’s pocketbook of the Canadian Human Rights Act for sale in gas stations all across Canada; a seemingly quaint idea with the compelling upshot of empowering the next generation to become rights-aware individuals.
The more that human rights are ingrained in the community’s consciousness, the greater the chance is of meeting the Queensland Human Rights Commission’s vision: a Queensland where rights are real for everyone. As one keynote speaker so aptly asked, ‘what binds us together more in our oneness and sameness than being human and having equal rights?’
By Laura Tyler and Kai Haworth