The real reason Queensland needs a Human Rights Act12-Sep-2015
Rosie is the reason we need a Human Rights Act
At 19, Rosie (not her real name) was living on the streets. She had been in the care of the Department of Child Safety until she turned 18. She'd been using drugs, she was in a violent relationship and she was pregnant. In hospital, after her healthy son was born, Child Safety was there to take him away. This was the second time the Department had removed a child from her care. Rosie's situation was not the best to bring a baby into but one thing was clear – Rosie desperately wanted to be a mother.
The intervention of Child Safety had brought Rosie into contact with the justice system and, as a result, with support services that she otherwise would not have accessed.
As Rosie's lawyer, with the assistance of an Aboriginal women's support service, I helped Rosie to find supported accommodation where she could live with her baby, be provided with parenting support, access counselling, be fed and sleep in clean sheets until she got her feet on the ground.
In court the Magistrate said that she was not willing to return Rosie's baby to her. The result was that Rosie remained homeless and that she stopped engaging with services. The next time I saw Rosie she was in prison.
As Rosie's advocate I had no ability to present arguments about Rosie and her son's rights to be with each other – their right to family and her right to equality before the law. Although the Child Protection Act 1999 contains a statement of rights that children are entitled to, these rights are not justiciable and there is no statement of the human rights of parents and other carers interacting with the child protection system.
If we had a Human Rights Act in Queensland things would have been different for Rosie and her newborn son. First, I would have had another way to advocate for Rosie, as the department's obligation to her would have been codified. Second, she may not have been in her situation in the first place because the department would have been obligated to consider Rosie and her son's rights in the development of policies, in their actions and in their decisions.
In Victoria advocates have effectively responded to intervention by Child Protection using their Charter of Human Rights and Responsibilities 2006. In one example, a single mother living with cerebral palsy was at risk of having her daughter taken from her by Child Protection. She needed to demonstrate that with the appropriate assistance she would be competent to care for her. The advocate used the mother's right to recognition and equality before the law and protection of families and children in mediation in the Children's Court. The woman was able to demonstrate her capability of mothering her child when adequate support was provided and Child Protection is no longer involved.
Human rights legislation, in the form that exists in the ACT and Victoria, provides people with enforceable rights while also ensuring that public policy is developed consistently with human rights.
Let's look at a current example.
It's Queensland Child Protection Week. The Queensland Government has released a consultation paper about reforms to the Child Protection Act. Among other things, the consultation paper discusses whether a human rights framework (best interests of the child) should continue to underpin child protection legislation. If we had a Human Rights Act we would not need to have this conversation. The consultation paper would instead be looking at how to ensure that any changes to legislation is compliant with human rights, and where it is not, that this engagement with rights is justified. In effect, a Human Rights Act takes policy developers to first base by providing them with a framework to work from.
In Victoria the Office of the Child Safety Commissioner has commented on the charter's meaningful impact. They have said they believe that that government is 'increasingly examining issues relating to children through a human rights lens'. To evidence this, the office pointed to the Victorian Law Foundation's consultation with young people in relation to how the children's court should be reformed.
It is encouraging that the Queensland Labor party has amended its policy platform to include a commitment in introducing a Human Rights Act for Queensland. It is now time for the Queensland Government to prioritise this important reform.
Last week, Dr Paul Williams wrote in The Courier-Mail that a Human Rights Act is not an urgent issue. Perhaps if he walked a day in Rosie's shoes his opinion might be different.