Human Rights Act will not improve Queenslanders' lives overnight

Human Rights Act will not improve Queenslanders' lives overnight

By Bridget Burton & Melody Valentine for the Brisbane Times

Queensland’s new human rights law is almost here. Within the proposed Human Rights Act is a complaint mechanism. It gives the Queensland Human Rights Commissioner responsibility to try to facilitate agreements between government entities and people who have experienced a breach of their human rights. Government entities include government departments, state education and health services, the police, correctional services, and (in a more limited way) courts and tribunals

The complaint mechanism is part of a ‘dialogue model’ that encourages people to make complaints when their rights are infringed and asks/assumes/hopes-and-prays that the government will respond productively to those complaints.

The Queensland government introduced its human rights bill in Parliament last month.

The Queensland government introduced its human rights bill in Parliament last month.CREDIT:ROBERT ROUGH

In most legal disputes we try dialogue – negotiating and/or mediation – first. This is nothing new. When we cannot work out our differences ourselves we will sometimes choose to take it further, to court or a tribunal. Unless there are some changes to the proposed law, human rights complaints will not proceed in this ordinary way. When parties cannot reach an agreement within the Human Rights Commission complaint process there is nothing further that can be done unless, and this is where it gets complicated, there is another sort of legal action available.

This means courts can consider human rights breaches but only if the parties are also fighting in that court about something else. It’s known as the ‘piggyback’ model. If this seems like a grand old time for lawyers and a nightmare for everyone else; it is. The absence of a simple right to go to court just because of a breach of human rights is one major criticism of the Victorian Charter of Rights, which also relies on piggybacking. It was also criticised in the ACT where a right to go to the Supreme Court was subsequently introduced a year after the human rights law commenced. In Queensland we will at least also have the complaint option in the Human Rights Commission but it won’t be enough.

To give an example, a four-year-old at risk of suspension from Prep because he cannot sit still and comply should ideally be able to exercise his right to an education to get support instead of punishment. But under the dialogue model, he could only get that if the school agrees. If his parents wanted to try to force the school to provide him with support they would have to find some other sort of legal action onto which they could ‘piggyback’ his human right to an education. If the little boy has a diagnosed disability causing his perpetual motion an anti-discrimination action might be possible? But what if he doesn’t have a disability, or he has a disability but it’s not the reason for his incessant wriggling? His parents would have to look for a review right under another piece of legislation and even if they find one, it will not apply when the decision is just threatened. It is much more likely that he will have no remedy at all under the human rights law.

If your human rights are breached and the law does not give you a right to go to court you are free to complain until you are hoarse and exhausted, as many people currently do. When not teaching, I am a community human rights lawyer. I spend my days talking to clients who have already tried to access their human rights by talking, complaining, writing letters, lodging forms and attending meeting after meeting after meeting.

For many of these people, things will not change overnight with the new law. Unless you have the resources to run a piggyback human rights action (and you can find something suitable to attach it to) then dialogue is still all you will have. Fundamentally those whose rights have been breached will still be responsible for educating those in power and hoping that is enough to encourage change.

Will our Human Rights Act improve things for Queenslanders? I hope so. In committing to the Act the Queensland government has indicated that it also hopes to build a fairer and more just society for all. And while hope is a wonderful thing, a legal dispute model that relies more on the power of crossed fingers than on enforceable legal rights has some way to go.

Bridget Burton is the director of the UQ Pro Bono Centre.

Melody Valentine is a researcher and Caxton Legal Centre lawyer.

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