On Wednesday 27 February, at about 4 pm, the Queensland State Parliament passed its Human Rights Bill into law, by a series of vote 49 to 43. There are now three individual human rights acts in Australia: one in Queensland, one in Victoria, and one in the Australian Capital Territory.
The three acts operate in broadly similar ways. They require courts and tribunals to interpret legislation in a way consistent with human rights, except where doing so would be inconsistent with the purpose or plain meaning of the legislation. If the Supreme Court is asked to find whether a particular law or statute is incompatible with human rights, declaring that there is an incompatibility does not result in the law being struck down. The declaration simply means that the relevant Minister or Attorney General has to table a written response to this declaration in parliament. These declarations have been further defanged in Queensland and Victoria, whose human rights acts provide for their parliaments issuing override declarations. Where these are made, the human rights acts have no bearing in relation to the relevant provisions or legislation.
The three acts provide that it is unlawful for public authorities to act inconsistently with human rights, unless the relevant provisions require them to act inconsistently with human rights. Where a public official acts unlawfully by breaching human rights, a person can seek relief in the Supreme Court. The remedies that they can seek do not include damages. However, if they could already seek damages through other avenues, they can still do so.
In a sense, these are minimalist models of human rights acts. They are not like the Bill of Rights in the United States of America, where laws can be struck down by activist courts. Instead, these acts can influence courts in certain ways, require officials to argue that certain laws are consistent with human rights, and can influence the obligations and behaviour of public officials. Whilst they may not be a panacea for all human rights violations, they offer the hope of moving Australia in a positive direction. NSW Council for Civil Liberties hopes that NSW can follow the lead of Victoria, Queensland and the ACT in entrenching protections of human rights.
NSW Council for Civil Liberties