By Zak Vidor Staub
The push for Australian states to adopt individual bills or charters of rights is increasing. Australia, and the Australian states and territories, are some of the last societies in liberal democracies to implement such protections in a single document.
With some states leading the way (Victoria and ACT), and others trailing behind, here are a few key points on the state and territory approaches to human rights.
Australian Capital Territory
Current status: has a Human Rights Act
According to the Gilbert and Tobin Centre for Public Law, the Human Rights Act 2004 (ACT) was the first legislation of its kind, making the ACT the first Australian state or territory to enact such protections.
It follows the structure of the “dialogue” model of human rights protection and is substantially based on its UK equivalent. This means that the enforcement and responsibility for upholding human rights falls on both the courts and parliament through a combination of parliamentary legislative power and robust judicial oversight.
According to Watchirs and McKinnon, such a model allows the ACT Legislative Assembly to retain the final say on whether proposed legislation is in line with human rights protections. They argue that this Act has had a positive influence by necessitating a consideration of the effect that proposed policy or laws will have on human rights.
Some of the various rights protected by the ACT legislation include: recognition and equality before the law; protection from torture and cruel, inhuman or degrading treatment; freedom of thought, conscience, religion and belief; and taking part in public life.
Victoria
Current status: has a Human Rights Act
Like the ACT, Victoria has a legislative bill of rights. This means that it can be easily changed by parliament, ultimately reducing its ability to hold the Victorian government to account. They are, however, effective in promoting a consideration of human rights in government decision making.
Some of the various rights protected by the Victorian legislation include: recognition and equality before the law; right to life; freedom from forced work; privacy and repudiation; and freedom of thought, conscience, religion and belief.
Queensland
Current status: has a Human Rights Act
Queensland's Human Rights Bill 2018 (Qld) was proposed in the state’s parliament in 2018 after a strong community movement.
In a media statement, the Queensland Attorney-General Yvette D’Ath said the Bill was in pursuit of ensuring ‘that respect for human rights is embedded in the culture of the Queensland public sector, and that public functions are exercised in a principled way that is compatible with human rights’.
However, there have been specific criticisms of the Bill. Amnesty Australia is concerned that the Bill would allow children who are convicted of criminal offences to be detained alongside adults in prison.
Michael O’Keeffe, a retired lawyer, raised concerns the Bill does little to offer redress to wrongfully convicted individuals in instances of a miscarriage of justice.
The bill was passed in February 2019.
The remaining states and territory
The remaining states are trailing behind to differing extents. The campaign in NSW is gaining momentum, with a growing alliance of community groups promising to engage the community in a more meaningful way throughout 2019.
Similarly, in Tasmania there’s a push to enact state human rights protections,10 years after the Tasmanian Law Reform Institute recommended the establishment of a Human Rights Act. The Tasmanian Human Rights Act campaign is calling for its government to ‘set out succinctly, in one place, the rights necessary to ensure all people live with dignity and security’.
Conclusion
Considering the continued criticism of Australia’s human rights record, it seems increasingly more important to create a legal system that may remedy some of these abuses.
It is clear that the current system is failing to adequately protect human rights, giving the government too wide a scope to politicise and de-prioritise human rights, as was evident when marriage equality was put to a popular vote in 2017.
Whilst numerous mechanisms could protect human rights, all over Australia, communities are demanding change in order to adequately protect human rights.
Zak Vidor Staub is studying a Bachelor of Laws and Arts at UNSW Sydney, and was the student editor for the Australian Journal of Human Rights.