At the recent Queensland state Labor conference Premier Annastacia Palaszczuk announced the government’s commitment to a human rights act, modelled on the Victorian Charter of Human Rights and Responsibilities Act 2006.
One of the purported justifications for a human rights charter is the protection it offers to individual rights against authoritarian State incursion. Rights here are seen as a bulwark protecting minority concerns against majoritarian consensus.
However, in this contest, precisely where the boundary lines are drawn can determine whether rights are preserved, or are trampled upon. On the legal front, all the action happens in the ‘limitations clauses’. These clauses provide when rights can be limited, effectively defining their outer boundaries, the realm of permitted state incursion.
The International Covenant on Civil and Political Rights 1966, which Australia has ratified, sets the international standard. For those rights that may be limited by State incursion, it permits only ‘necessary’ limitations. Contrary to this, the ACT Charter and the Victorian Charter, which Queenslanders are now asked to endorse, both draw the boundary much further into the heartland of an individual’s rights, permitting ‘reasonable’ State incursion.
At the Queensland parliamentary inquiry into the charter I was asked to illustrate the practical difference between these ‘necessary’ and ‘reasonable’ limitations, with specific application to the ‘right to freedom of thought, conscience and religion’. I drew on real-life claims arising in other jurisdictions: a Jewish prisoner not able to access a kosher diet in a remote prison; a health authority banning the wearing of a cross; Sikhs being directed to remove their turban in identity photos and a health authority banning the wearing of Sikh traditional dress.
In each of these cases, the ‘reasonable’ standard offers a much shorter path to majoritarian rule than the test of ‘necessity’. The ICCPR requires the State to demonstrate that its interests ‘necessarily’ require the desired limitation of minority rights.
I argued that the conflict between the standards takes on enhanced meaning in our multicultural, settler society. The choice adopted provides a measure of our willingness to accommodate minority convictions.
To grasp just how concerning the issue is for the purportedly ‘protected’ individual, consider these other rights protected by the ICCPR: the right to liberty of movement (Article 12); the right to privacy during court proceedings (Article 14); the ‘right to hold opinions without interference’ (Article 19); and the right to freedom of association (Article 22). All of these rights are protected by the necessity requirement.
In my submissions to the parliamentary inquiry I argued that to adopt the Victorian model would effectively limit rather than protect human rights. I submitted that this was simply unacceptable. A Charter of Rights should not derogate from the standards implemented in international law.
Plutarch’s ‘Ship of Theseus’ was a philosophical thought experiment that explored the nature of identity, substance, continuity and change. Theseus’ boat was preserved by Athenians in order to record the efforts of its captain, the slayer of the Minotaur.
The thought experiment goes like this – if over time we successively replace each plank in Theseus’ boat, does it become a new boat, and if so, when?
Apply that to modern human rights theory. One way to think of ‘rights’ is as circumscribed domains of entitled conduct.
Assume that under the ICCPR, Right Y protects both Act A and Act B. In Victoria a ‘right’ bearing the same name protects Act A, but not Act B. Although sharing the same name, in practice, we are no longer talking about the same right. The removal of planks has materially altered the substance.
The concern is accentuated by the fact that the violation of an ICCPR right by removal could be grounds for a complaint to the UN Human Rights Committee.
As pointed out by Associate Professor Julie Debaljak, ‘where the Victorian Charter obligations are less rigorous than the minimum protections guaranteed under international human rights law, the Commonwealth may still be held to account internationally for any violations of Australia’s international human rights obligations.’
Importantly for Queensland, under Article 50 the ICCPR applies in all parts of a federation ‘without any limitations or exceptions’.
Theseus’ slaying of the Minotaur is thought to have represented fledgling democratic Athens’ struggle against autocratic Crete.
The proposal for a human rights charter offers the Queensland government a challenge: in the labyrinthine maze that is the modern human rights contest, will it play the role of the despotic Minotaur or of Theseus, the champion of liberty?
Mark Fowler is Chair of CLEAR International Australia Ltd, a charity that unites State-based Christian lawyers societies around Australia. He was a member of the Queensland Law Society Human Rights Working Group and is a PhD candidate at the University of Queensland. His comments are his own.