As state parliament returns this week, one of the first major questions facing MPs is whether Queensland should adopt a Human Rights Act.
The Palaszczuk Government’s bid to enshrine 23 human rights in law may sound like an innocuous enough attempt to protect basic rights. In truth, it would shift responsibility for ensuring Queenslanders’ fundamental rights and freedoms from elected governments into the hands of courts and tribunals.
At a time when trust in politicians is at an all-time low, it’s tempting to think our rights would be safer away from the messiness of politics and in the custody of judges who aren’t seeking re-election.
The problem is that determining the scope of our rights in practice isn’t straightforward. No right is absolute, and the question of which right prevails when two or more conflict can stir passionate debate. To ask the judiciary to routinely step into this debate is to undermine confidence in its independence from political issues—or lead to demands for them to become accountable at elections like politicians themselves. Neither outcome is desirable.
A second problem lies with the nature of the rights set out in the bill. Most people would not argue about those fundamental rights derived from the International Covenant on Civil and Political Rights (ICCPR). These include rights like freedom of expression and equality before the law. If you don’t have these rights, you lack the basics of what it means to be a free human being.
Several of the 23 rights contained in Labor’s bill relate more to the nature of services often provided by the state and the private sector. Consider the rights to education and healthcare. What kind and how much of these vital services are provided by the public is a core issue for elected governments. Both are perennial issues in state and federal election campaigns. They are important, sure, but they are in a different category to the ICCPR rights.
Other so-called rights in Labor’s bill are nothing more than empty platitudes. ‘Cultural rights’ and ‘taking part in public life’ may be fine aspirations for a political stump speech, but it is dangerous to invite judges to activism by including such vague concepts in a bill of rights.
Unlike the United States’ Bill of Rights, Queensland’s Human Rights Bill will not grant courts the power to invalidate legislation found incompatible with those rights. It does, however, force courts to interpret all existing legislation in a manner consistent with them. In New Zealand, this same power has been used by judges to rewrite well-established rules of criminal procedure and evidence in favour of the accused – an astounding overreach which Labor’s bill would make possible here in Queensland.
It’s arguable that the Labor bill’s express purpose is to give legal elites this ability to circumvent Parliament. In its 2016 inquiry report on introducing a Human Rights Act, the Labor-endorsed recommendation stated: “Society is changing at a rapid rate… Consequentially there needs to be a mechanism which allows these (changes) to be addressed.”
This notion that social change can be better addressed through courtrooms than parliament is profoundly misguided. Empowering judges to enter the political fray blurs the separation of powers and weakens democracy.
Perhaps the most compelling reason to reject a bill of rights is that they don’t work. History has shown flagrant breaches of human rights in countries that have a bill of rights; it has also shown improved human rights in countries where there has been none. When nations generously protect the freedoms of citizens, they do it because of the political and social culture, not because they have a bill of rights.
A Human Rights Act is the trifecta of failure: undermining the judiciary by encouraging activism and politicisation, allowing politicians to avoid doing their job, and ultimately, it just doesn’t work. All it will deliver is a culture of rights entitlement.