By Prof George Williams*
Our national leaders have spent countless hours extolling the importance of freedom of speech and freedom of religion. However, they have failed to back their words with action.
Instead, as bodies such as the Institute of Public Affairs have shown, the federal Parliament continues to pass a long list of laws that trample upon basic rights.
Last week, the Palaszczuk government in Queensland decided to take the lead. It fulfilled an election promise by introducing a new law into the Queensland Parliament.If passed, its Human Rights Act will grant Queenslanders stronger protection for 23 basic rights.
The new law will provide that ‘every person has the right to freedom of thought, conscience, religion and belief’. This includes ‘the freedom to have or to adopt a religion or belief of the person’s choice’ and ‘the freedom to demonstrate the person’s religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private’.
Protection will be provided for freedom of expression, of association and to property, with further safeguards for families and children. The law includes important legal rights, such as that a person should not be subject to a retrospective criminal law or tried more than once for the same offence. It will also set out the standard that every child has a right to primary and secondary schooling, and that a person must not be refused emergency medical treatment needed to save their life.
The Queensland Human Rights Act has been carefully drafted to avoid anything akin to the Bill of Rights in the United States Constitution. Judges will not be given the power to strike down laws, and at best can send a law back to Parliament for reconsideration. The Queensland law will be an ordinary Act that will remain subject to parliamentary sovereignty. It also has a built-in override clause that enables Parliament to assert its final say on contentious issues.
The Queensland law follows a well-trodden path. New Zealand passed a like law in 1990, as did the United Kingdom in 1998. Two Australian jurisdictions, the ACT and Victoria, passed their own laws in 2004 and 2006 respectively. Independent inquiries have also recommended that laws of this kind be passed in Tasmania and Western Australia.
Best drafted
The Queensland Human Rights Act builds upon this experience. It is the best drafted and most effective shield of people’s rights yet seen in Australia.
Decades of evidence in Australia and like countries demonstrates how the Queensland Human Rights Act will operate. The ACT and Victoria show that court cases will be few and far between. Instead, the law will drive change in government and Parliament for the benefit of the community.
When the Queensland Parliament makes new laws, its Human Rights Act will require politicians to consider the impact upon liberties like freedom of speech. The result will be better debate and a higher regard paid to citizens’ rights.
Another major impact will be on how government services are delivered. The experience of these laws elsewhere is that they shift power from government agencies to the users of these services. Agencies must act in a way that is consistent with basic standards of decency and respect. Where they do not, they can be held accountable.
The result can be dramatic for anyone who depends upon these services. There are many life-changing examples in public housing, health care, disability services and aged care. No doubt the federal government’s royal commission into aged care will provide more instances of where a Human Rights Act would make a difference.
Enables complaint resolution
The Queensland law is an improvement on its predecessors because it adds a low-cost means of dealing with complaints. A person whose rights have been breached by a government body like a public hospital or school can make a complaint to that body.
If the problem is not fixed, the law provides for the parties to get together for informal conciliation, rather than the matter having to go to court. This makes the law more accessible to citizens.
Queensland’s Human Rights Act will be a notable legacy of the Palaszczuk government.
However, it is important to recognise that this change has been championed by both sides of politics. The first attempt anywhere in Australia to enact a Human Rights Act was by the Queensland Country-Liberal party coalition led by Premier Frank Nicklin. It introduced a bill in 1959 to protect a range of democratic rights, but the law did not gain enough support and lapsed.
More than half a century later, the need for such a law is no less pressing. It is time for Queensland to lead the nation in providing stronger protection for our freedoms.
*Professor George Williams is Dean of Law at the University of New South Wales, and a member of CLA. This article appeared first in The Australian on 181105.