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A little bit of human rights history repeating

Unsurprisingly, COVID-19 has heavily influenced the discussion of human rights in Queensland, and the application of the still relatively new Human Rights Act 2019, over the past year.

However, the Queensland Human Rights Commission’s recent annual report on the operation of the Act indicates that a strong culture of human rights is developing despite (or because of) the pandemic.1

The growing recognition of Aboriginal and Torres Strait Islander peoples’ cultural rights is a particular feature and this was demonstrated during the year in several different settings. Also unrelated to the pandemic, the Queensland Supreme Court delivered a significant decision on how the application of the Act differs from its predecessors in the Australian Capital Territory and Victoria.

In the courts

The Act was mentioned in 59 matters in Queensland courts and tribunals in 2020-21.

Notable mentions included Queensland Civil and Administrative Tribunal (QCAT) granting a mother’s application to home school her child after experiencing domestic violence.2 In two other matters, in considering exemptions under the Anti-Discrimination Act 1991, QCAT held that it was acting in an administrative capacity and was therefore a public entity with obligations under the Human Rights Act.3

In Attorney-General for the State of Queensland v GLH [2021] QMHC 4, the Mental Health Court found the regime established by the Mental Health Act 2016 to be compatible with the Human Rights Act.

In October 2021, the Supreme Court provided further guidance on the application of the Human Rights Act in judicial review matters in Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273.

A prisoner held in solitary confinement since 2013 applied for judicial review of two related decisions to continue his separation from others. The prisoner’s only successful grounds concerned human rights.

The court set out a framework for assessing if a public entity has complied with its obligations under the Act. Due to provisions unique to the Queensland Act, this requires the entity to identify the relevant human rights affected by a decision to discharge its obligation to give proper consideration to rights. As the public entity contravened its obligations under the Human Rights Act, the court concluded the decisions were unlawful.

In Parliament

Parliamentary utilisation of the Act is arguably not as developed as in other areas.

Parliamentary committees have expressed concerns about human rights compatibility and statements of compatibility, including laws relating to youth justice,4 and COVID-19.5 However, this has not translated to meaningful change through the legislative process.

Of the Bills referred to parliamentary committees in 2020-21, around half were found to have adequate Statements of Compatibility. Of the 10 Statements of Compatibility in which committees identified deficiencies, the committee received further information through the inquiry process to address some or all issues on four occasions.

This is a strength of the Queensland parliamentary model, as it provides for additional information to be collated and published through the process to address uncertainty about human rights compatibility.

However, in several cases committees discussed deficiencies in the Statement of Compatibility or other concerns with human rights limitations without making a formal request for more information, or making a recommendation that a Bill be amended.

This usually meant that no further information was provided by the Government to justify a limitation, nor were amendments to the Bill apparently considered. Nonetheless, in a positive development for human rights dialogue, on some occasions Ministers tabled additional information or tabled amendments addressing human rights issues raised through the scrutiny process, even if these were not formally requested or recommended.

Complaints

The Queensland Act is the first state-based legislation to offer an accessible mechanism for the conciliation of human rights complaints. The Queensland Human Rights Commission received 369 complaints about human rights from 1 July 2020 to 30 June 2021 (237 human rights-only complaints and 132 piggy-backed onto discrimination complaints).

Complaints were received from throughout the state, although many enquiries were also made from throughout Australia and the world, perhaps reflecting the impact of COVID border restrictions.

COVID-19 was the subject matter of one in four human rights complaints and one in six enquiries to the commission, and there were surges in complaint numbers as a result of lockdowns and other pandemic response measures. Of the 344 complaints finalised in the 2020-21 financial year, 89 complaints were about COVID-19, including issues arising in hotel quarantine and border restrictions.

The focus on COVID is reflected in the rights most frequently identified in complaints finalised in the reporting period:

  • recognition and equality before the law
  • humane treatment when deprived of liberty
  • freedom of movement.

For human rights-only complaints (that is, not made under the Anti-Discrimination Act), humane treatment was the most common right cited. The majority of finalised complaints were also in the ‘health’ sector. This is likely another reflection of the impact of COVID restrictions, particularly quarantine arrangements.

Nonetheless, cultural rights and complaints from Aboriginal and Torres Strait Islander peoples were a feature of the previous year.

The growing significance of cultural rights

Section 28 of the Queensland Act protects the cultural rights of Aboriginal peoples and Torres Strait Islander peoples. This includes the right to maintain and strengthen distinctive spiritual, material and economic relationships with the land, territories, waters, coastal seas and other resources with which they have a connection under Aboriginal tradition or Island custom.6

This right, modified from cultural rights protected in the ACT and Victoria, continues to have particular relevance to Queensland. The state has a larger percentage of residents who identify as being Aboriginal and/or Torres Strait Islander,7 and there have been more positive determinations of native title covering significantly more land and waters compared to Victoria and the ACT.

One in 10 of the human rights complaints to the commission in 2020-21 was made by Aboriginal or Torres Strait Islander people.

As demonstrated by a complaint resolved by the commission, cultural rights may apply even when native title has been extinguished. Traditional Wangan and Jagalingou custodians relied on the Act to protect their cultural rights to perform ceremonies on land granted to Adani’s Carmichael coal mine.

Community leader Adrian Burragubba brought a complaint to the commission8 after police asked a group of traditional custodians to stop conducting ceremonies and leave the site. The complaint was resolved through the conciliation process, and the Queensland Police Service issued a public apology.

The outcome indicates a commitment by the Queensland Police Service to uphold the cultural rights of Aboriginal peoples and Torres Strait Islander peoples and demonstrates the value of the Act for Queensland’s First Nations peoples.

Later media reports suggest this outcome continues to effect the approach of Queensland police regarding the ability for traditional owners to conduct ceremonies. Guardian Australia reports police saying to traditional owners: “We understand that your connection to culture is disappearing and you don’t want to lose that”, and “At the moment you guys are here and you’re practising culture, and part of that under the Human Rights Act is for that to be practised and shared.”9

The commission’s annual report also includes a case study from a housing provider about its consideration of cultural rights. A young Aboriginal woman was living in a multi-dwelling complex with her sibling over whom she had formal custody under a child safety order.

Repeated disruptive incidents over a two-year period had left the neighbours feeling fatigued and impacted by this tenant’s behaviour. The housing officer linked the siblings to culturally appropriate supports and decided not to proceed to eviction, instead facilitating a transfer to an Indigenous housing property.

Conclusion

Embedding any new legislation takes time, particularly one that seeks to improve a culture within government of respect for dignity and human rights.

A global pandemic and the related government restrictions risk undermining those efforts. However, the pandemic has led many Queenslanders to consider for the first time how government decision making and actions affect their rights. Aside from the pandemic, the past year has also shown how the application of human rights in Queensland may make a unique difference compared to other jurisdictions.

This article appears courtesy of the Queensland Law Society Human Rights and Public Law Committee. Sean Costello is a Principal Lawyer at the Queensland Human Rights Commission and a member of the committee.

Footnotes
1 Queensland Human Rights Commission, ‘Balancing life and liberty: the second annual report on the operation of Queensland’s Human Rights Act 2019, (Report, 2021).
2 SF v Department of Education [2021] QCAT 10.
3 Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164 and Re Ipswich City Council [2020] QIRC 194.
4 Legal Affairs and Safety Committee, Queensland Parliament, ‘Inquiry into the Youth Justice and Other Legislation Amendment Bill 2021’(Final Report, April 2021) 54.
5 Economics and Governance Committee, Queensland Parliament, ‘COVID-19 Emergency Response and Other Legislation Amendment Bill 2021’ (Report No.6, April 2021) 46.
6 The Preamble also acknowledges the special importance of human rights to Aboriginal and Torres Strait Islander People with their distinctive spiritual, material and economic relationship and traditional connection with lands, territories, waters, coastal seas and other resources.
7 4% of the Queensland population identify as being of Aboriginal and/or Torres Strait Islander origin, compared to 0.8% in Victoria and 1.6% in the ACT. Australian Bureau of Statistics, ‘Census of Population and Housing: Reflecting Australia – Stories from the Census,2016’ (Catalogue No. 2071.0, 28 July 2017).
8 Queensland Human Rights Commission, ‘Balancing life and liberty: the second annual report on the operation of Queensland’s Human Rights Act 2019, (Report, 2021). See ‘Resolved complaint case studies’ on page 155 under the title ‘Police express regret about asking traditional custodians to move on while exercising their cultural rights’.
9 Ben Smee, ‘Queensland police refuse to remove traditional owners occupying Adani’s coalmine siteThe Guardian (online, 3 October 2021).

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