The indignity of a right you cannot enforce

Queensland’s new Human Rights Act is at risk of being more puff than fire

Bridget Burton

Government and governance, Law, Social policy | Australia

25 October 2018

Will a new Human Rights Act mean much for those suffering from exclusion and disenfranchisement? That depends on whether it has an ‘independent cause of action’, Bridget Burton writes.

In February this year, Queensland Premier Annastacia Palaszczuk confirmed her government will keep its commitment to introduce a Human Rights Act in the state.

I have been watching the conversation about human rights in Queensland for a while. As a human rights lawyer I have traversed the ups and downs and live in hope. The long delay since the announcement has me worried.

I am worried there is a problem, very specifically with the independent cause of action.

A cause of action is the essential part of any law that lets people take legal action to deal with a breach. In a lot of other places breaches of human rights can be added as an extra argument in other sorts of legal actions, often described as ‘piggy-backing’, but do not stand alone. If that seems strange, and useful only to lawyers – that’s because it is.

An independent cause of action stands on its own and makes sense to everyone. It means you do not need to be already arguing about something else in order to raise human rights breaches.

I am worried that without an independent cause of action we may end up with a piece of law that looks pretty and sounds great – but does little for my clients.

More on this: Australia must get better at the business of human rights

At its heart, human rights legislation represents an effort to require government and organisations to treat individuals with decency, dignity, respect and compassion. To exercise a little imagination, to be warm and inclusive, to understand and support humanity in all its complexity and variety.

Most of my clients already think they have the fundamental rights that a Human Rights Act will bring. They come to me humiliated by an interaction wanting to ‘enforce’ those rights. They bring evidence of their effort to do something without a lawyer: letters of complaint (“I know my rights”); CCTV footage (“You can’t treat me like this”); phone transcripts (“You’re not allowed to speak to me that way”).

When not teaching, I am a community-based human rights lawyer – the first person many people speak to when they have been wronged. I am the one who tells countless people, “Sorry, the right you think you have (and have already asserted) to dignity, respect, decency, compassion – is simply not legally enforceable.”

I hand out tissues and sit with them in their distress. Lawyers like me lend our authority to return some dignity in our interactions with these clients. We recognise their trauma and acknowledge the wrongs and we listen, really listen – sometimes that is all we can do.

We find it endlessly hard. Many of us wake in the night worrying, we start to feel the disenfranchised anger our clients feel. We question ourselves.

If I tell an Aboriginal woman that there is nothing she can do when the department of housing/police/child safety refuse to take into account her cultural needs or her history of trauma when they evict/demean/exclude her – am I really part of the solution? If I can calm her in her distress, am I implicated in the structures that caused it? Am I just being paid to help people live with injustice?

A Human Rights Act with more puff than fire will change some things, but are they the things the people I care about care about? I am not sure.

To know you have a right you cannot enforce is not so different to how people already experience breaches of their human rights. I am fairly confident that the people who come to me do not want to keep on having the conversations we have been having since the day I qualified.

If the Queensland government is serious about protecting human rights, it should keep the victims of exclusion and disenfranchisement in mind more than lawyers when drafting the new legislation. An independent cause of action makes all the difference.

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