A Human Rights Act in South Australia is well overdue but how it is put into practice is crucial. Here is one rights organisation’s experience of the Queensland model by Sharyn White.
The Queensland Human Rights Act 2019 has been applied since the beginning of 2020 and requires that human rights be considered when proposing new laws. All legislation introduced into Queensland Parliament must now include a ‘Statement of Compatibility’ with the Human Rights Act 2019, written by the Member of Parliament who introduces the Bill.
Grassroots adoptee run organisation, Adoptee Rights Australia (ARA) Incorporated was recently involved in an inquiry into a Bill in Queensland – the Child Protection and Other Legislation Amendment Bill 2020, and we experienced the Queensland model in action.
Here are some observations from that experience:
For ARA, the concept of objective and systematic scrutiny of the proposed legislation using explicit rights-based criteria was novel and encouraging. Adoptee rights are a relatively new territory, and as one of the most misunderstood groups under some of the most rights-intrusive and least rights-scrutinised legislation there is, we were able to identify additional human rights limitations not previously recognised. When writing our submission to the inquiry, the opportunity to engage with a structured framework to identify areas of limitations to rights that we had previously tried to describe in terms of more nebulous ideas of injustice and discrimination felt incredibly empowering.
What actually happened:
Thirty-nine submissions were supplied to the inquiry into the Bill. Among them was one from the Queensland Human Rights Commission which did not support the Bill from a human rights perspective, stating in summary that the "... amendments are not based on evidence that they will achieve the stated purpose, are premature in light of the forthcoming review of adoption legislation, and do not sufficiently safeguard the rights of the child and birth family" (Submission 33, 2020).
Despite most submissions having concerns or not supporting the Bill, the outcome of the inquiry was a recommendation that the Bill be passed. The inquiry’s final report includes a 10 page section: ‘Compliance with the Human Rights Act 2019’. This section has 38 individual references to resources on human rights, but at no point is there engagement with – or even mention of – the Queensland Human Rights Commission submission let alone the human rights issues raised by other stakeholders, including ARA. These issues are only mentioned in the report in summary in the ‘Stakeholder Views’ section and are not engaged with or discussed.
This gives rise to two key issues that have the potential to detract from the objects and purposes of the Queensland human rights framework:
The lack of meaningful engagement or dialogue between the Parliament and the Human Rights Commission on human rights issues identified in proposed legislation.
It seems logical that, at the very least, the Human Rights Commission should be offered a response to any human rights concerns it raises by the parliamentary committee tasked with reviewing the rights compliance of the Bill. If this does not occur, the opportunity for a meaningful dialogue on rights is missed. It is of concern that under the Queensland model, the Queensland Human Rights Commission, which is an independent and expert body in the field of human rights, is given no procedurally recognised weighted role beyond that of any other stakeholder.
The lack of rigor surrounding the content and detail of Statements of Compatibility.
The current Queensland human rights framework fails to provide adequate guidance to ensure that Statements of Compatibility are robust, rigorous and consistently completed. Just having a statement of compatibility with no defined process or further requirement to respond to highlighted problems is the equivalent of a ‘tick-a-box’ administrative procedure. With no procedure to require further engagement, there is a real risk that the requirement to introduce Bills with a Statement of Compatibility is meaningless, or at worst, counter-productive if it results in a grand show of considering human rights while contributing to their invalidation by doing very little.
In ARA’s experience of the Queensland model, the Statement of Compatibility did promote increased rights literacy, but no more than that. Our experience was that instead of safeguarding and protecting adoptee and potential adoptee rights, this process merely allowed our marginalised group to better articulate – but still into a vacuum – which of our rights are limited and ignored.
Can we improve on this in South Australia?
This experience gives rise to a number of key questions for other jurisdictions contemplating human rights legislation to carefully consider. These questions include:
How could the practices and procedures embedded in the Queensland Human Rights Act, particularly those relating to parliamentary scrutiny of rights compliance, be improved on in the development of a Human Rights Act in South Australia? If there were further requirements built in to engage with problems found with the Statement of Compatibility, what might this look like? What is sufficient engagement and how could meaningful dialogue be promoted?
On the other end of the continuum of engagement could a body like a Human Rights Commission be given powers to demand satisfactory engagement, or veto a Bill that either did not satisfy requirements for compatibility or provide sufficient reason or reasonable justification for rights limitations? Should a parallel Statement of Compatibility also be produced by a specialist independent body like a Human Rights Commission, perhaps with Stakeholder involvement invited?
The development of an effective human rights approach for South Australia depends on ensuring these questions are considered.
Sharyn White, Bachelor of Arts (Psychology), is a discharged adoptee, co-founder and Secretary of Adoptee Rights Australia (ARA) Inc, and adoptee rights advocate.