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Human Rights Bill Committee Report Human Rights Bill 2018 Report No. 26, 56th Parliament Legal Affairs and Community Safety Committee February 2019 Legal Affairs and Community Safety Committee Chair Mr Peter Russo MP, Member for Toohey Deputy Chair Mr James Lister MP, Member for Southern Downs Members Mr Stephen Andrew MP, Member for Mirani Mr Jim McDonald MP, Member for Lockyer Mrs Melissa McMahon MP, Member for Macalister1 Ms Corinne McMillan MP, Member for Mansfield Committee Secretariat Telephone +61 7 3553 6641 Fax +61 7 3553 6699 Email [email protected] Technical Scrutiny +61 7 3553 6601 Secretariat Committee Web Page www.parliament.qld.gov.au/lacsc Acknowledgements The committee acknowledges the assistance provided by the Department of Justice and Attorney- General and the Queensland Parliamentary Library. 1 On 1 November 2018, the Leader of the House appointed the Member for Capalaba, Don Brown MP, as a substitute member of the committee for the Member for Macalister, Melissa McMahon MP, to attend the committee’s public briefing held on Monday 12 November 2018. Human Rights Bill 2018 Contents Abbreviations iii Chair’s foreword v Recommendation vi Introduction 1 Role of the committee 1 Inquiry process 1 Policy objectives of the Bill 1 Government consultation on the Bill 2 Should the Bill be passed? 2 Examination of the Bill 3 Objects of the Act 3 2.1.1 The dialogue model 3 Interpretation 8 2.2.1 Meaning of public entity and when a function is of a public nature 8 2.3 Application of human rights 13 2.3.1 Who has human rights 13 2.3.2 Human rights may be limited 15 2.3.3 Conflicting human rights 19 2.4 Civil and political rights 20 2.4.1 Recognition and equality before the law 20 2.4.2 Right to life 23 2.4.3 Protection from torture and cruel, inhuman or degrading treatment 24 2.4.4 Freedom from forced work 25 2.4.5 Freedom of movement 26 2.4.6 Freedom of thought, conscience, religion and belief 26 2.4.7 Freedom of expression 27 2.4.8 Peaceful assembly and freedom of association 29 2.4.9 Taking part in public life 31 2.4.10 Property rights 31 2.4.11 Privacy and reputation 32 2.4.12 Protection of families and children 33 2.4.13 Cultural rights – generally 36 2.4.14 Cultural rights – Aboriginal peoples and Torres Strait Islander peoples 37 2.4.15 Right to liberty and security of person 40 2.4.16 Humane treatment when deprived of liberty 41 2.4.17 Fair hearing 42 2.4.18 Criminal proceedings 43 2.4.19 Children in the criminal process 47 2.4.20 Right not to be tried or punished more than once (double jeopardy) 49 2.4.21 Retrospective criminal laws 49 2.5 Economic, social and cultural rights 50 2.5.1 Education 50 Legal Affairs and Community Safety Committee i Human Rights Bill 2018 2.5.2 Health services 57 2.6 Application of human rights in Queensland 59 2.6.1 Statements of compatibility and human rights certificates 59 2.6.2 Role of portfolio committees 61 2.6.3 Override declarations 64 2.6.4 Statutory interpretation 67 2.6.5 Declaration of incompatibility 73 2.6.6 Obligations on public entities 75 2.7 Queensland Human Rights Commission 92 2.7.1 Proposed law 92 2.7.2 Functions and powers 92 2.7.3 Human rights complaints 96 2.7.4 Making a human rights complaint 97 2.7.5 Dealing with or referring a human rights complaint 100 2.7.6 Conciliation of a human rights complaint 102 2.7.7 Giving Information for complaints 106 2.7.8 Resolved and unresolved human rights complaints 107 2.7.9 Reporting requirements 110 2.8 Amendment of legislation 111 2.8.1 Proposed amendments 112 2.8.2 Amendment of Anti-Discrimination Act 1991 113 2.8.3 Amendment of Corrective Services Act 2006 and Youth Justice Act 1992 114 2.9 Stakeholder views on expanding human rights protected by the Bill 117 2.9.1 Issues raised in submissions 118 2.9.2 Departmental response 120 3 Compliance with the Legislative Standards Act 1992 122 3.1 Fundamental legislative principles 122 3.1.1 Rights and liberties of individuals 122 3.1.2 Institution of Parliament 123 3.2 Explanatory notes 124 Appendix A – Submitters 125 Appendix B – Officials at public departmental briefing held on 12 November 2018 133 Appendix C – Witnesses at public hearing held on 4 December 2018 134 Statement of Reservation 137 ii Legal Affairs and Community Safety Committee Human Rights Bill 2018 Abbreviations AASW (Qld) Australian Association of Social Workers (Qld) ACL Australian Christian Lobby ACLS Australian Christian Legal Society Ltd ADCQ Anti-Discrimination Commission Queensland AIA Amnesty International Australia ALA Australian Lawyers Alliance ALHR Australian Lawyers for Human Rights BAQ Bar Association of Queensland Bill Human Rights Bill 2018 CCHRL Castan Centre for Human Rights Law CLC Caxton Legal Centre CLCQ Community Legal Centres Queensland Code/Criminal Code Schedule 1 to the Criminal Code Act 1899 CSA Corrective Services Act 2006 committee Legal Affairs and Community Safety Committee CYDA Children and Young People with Disability Australia DDA Disability Discrimination Act 1992 (Cwth) department / DJAG Department of Justice and Attorney-General ECCQ Ethnic Communities Council of Queensland EDO Environmental Defenders Office (Qld) Inc FLP fundamental legislative principle HR Act Human Rights Act HRLC Human Rights Law Centre ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ Qld International Commission of Jurists Queensland ILGG research program QUT Faculty of Law’s International Law and Global Governance research program LGAQ Local Government Association of Queensland LSA Legislative Standards Act 1992 OQPC Office of the Queensland Parliamentary Counsel Legal Affairs and Community Safety Committee iii Human Rights Bill 2018 PACT Protect All Children Today Inc. PWDA People with Disability Australia QAI Queensland Advocacy Incorporated QCAT Queensland Civil and Administrative Tribunal QCCL Queensland Council for Civil Liberties QCIE Queensland Collective for Inclusive Education QCOSS Queensland Council of Social Service QCU Queensland Council of Unions QFCC Queensland Family and Child Commission QHRC Queensland Human Rights Commission QLS Queensland Law Society QMHC Queensland Mental Health Commission QNMU Queensland Nurses and Midwives’ Union QTU Queensland Teachers’ Union SELB Student Engagement, Learning and Behaviour Research Group TCLS Townsville Community Legal Service Inc. UDHR Universal Declaration of Human Rights UNCRC United Nations Convention on the Rights of the Child UNCRPD United Nations Convention on the Rights of Persons with Disabilities UNDRIP United Nations Declaration on the Rights of Indigenous Peoples Victorian Charter Charter of Human Rights and Responsibilities 2006 (VIC) VOCA Victims of Crime Assistance Act 2009 WLSQ Women’s Legal Service Queensland YAC Youth Advocacy Centre Inc YJA Youth Justice Act 1992 iv Legal Affairs and Community Safety Committee Human Rights Bill 2018 Chair’s foreword This report presents a summary of the Legal Affairs and Community Safety Committee’s examination of the Human Rights Bill 2018. The committee’s task was to consider the policy to be achieved by the legislation and the application of fundamental legislative principles – that is, to consider whether the Bill has sufficient regard to the rights and liberties of individuals, and to the institution of Parliament. On behalf of the committee, I thank those individuals and organisations who made written submissions and who attended our public briefing and public hearing on the Bill. I also thank our Parliamentary Service staff and the Department of Justice and Attorney-General for their assistance throughout this inquiry. I commend this report to the House. Peter Russo MP Chair Legal Affairs and Community Safety Committee v Human Rights Bill 2018 Recommendation Recommendation 2 The committee recommends that the Human Rights Bill 2018 be passed. vi Legal Affairs and Community Safety Committee Human Rights Bill 2018 Introduction Role of the committee The Legal Affairs and Community Safety Committee (committee) is a portfolio committee of the Legislative Assembly which commenced on 15 February 2018 under the Parliament of Queensland Act 2001 and the Standing Rules and Orders of the Legislative Assembly.2 The committee’s primary areas of responsibility include: • Justice and Attorney-General, and • Police, Fire and Emergency Services, and Corrective Services. Section 93(1) of the Parliament of Queensland Act 2001 provides that a portfolio committee is responsible for examining each bill and item of subordinate legislation in its portfolio areas to consider: • the policy to be given effect by the legislation • the application of fundamental legislative principles, and • for subordinate legislation – its lawfulness. The Human Rights Bill 2018 (Bill) was introduced into the Legislative Assembly and referred to the committee on 31 October 2018. The committee is to report to the Legislative Assembly by 4 February 2019. Inquiry process On 2 November 2018, the committee invited stakeholders, subscribers and the public to make written submissions on the Bill. The committee accepted 149 written submissions, as well as 135 form submissions including variants thereof. See Appendix A for a list of submitters. The committee received a public briefing about the Bill from the Department of Justice and Attorney- General (department or DJAG) and Queensland Corrective Services on 12 November 2018; see Appendix B for a list of officials. The committee also received written advice from the department in response to matters raised in submissions. The committee held a public hearing on 4 December 2018 (see Appendix C for a list of witnesses). The submissions, correspondence from the department and transcripts of the briefing and hearing are available on the committee’s webpage.
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