Motion – Human Rights Act

Ms Webb to move ⎯ That the Legislative Council

1. Notes that International Human Rights Day is observed every 10th of December, the date on which the United Nations General Assembly in 1948 formally adopted the Universal Declaration of Human Rights, which proclaims the inalienable rights to which every person is entitled;
2. notes that 2023 will be the 75th Anniversary of the milestone Universal Declaration of Human Rights;
3. acknowledges the long-standing community call for a Tasmanian Human Rights Act;
4. recognises that the Tasmanian Law Reform Institute (TLRI), following extensive public consultation, recommended in 2007 that Tasmania introduce a Human Rights Act, and that the TLRI is currently finalising an updated report;
5. notes that Victoria, Queensland and the Australian Capital Territory have implemented Human Rights Acts;
6. welcomes the recent Ministerial Statement made by the Premier, the Honourable Jeremy Rockliff MP, on the 16th August 2022, asserting the safety of children and young people are “fundamental human rights”, and also the Premier’s media statement of 26 September 2022 recognising housing as a “basic human right”;
7. welcomes the recent formation of the grassroots Alliance for a Tasmanian Human Rights Act (ATHRA), arising from a forum held in June this year which was hosted by Equal Opportunity Tasmania and sponsored by the Attorney-General;
8. congratulates this new grassroots alliance for their work, including a rally to be held on Saturday the 26th of November, to both celebrate International Human Rights Day while highlighting that it’s time for a Human Rights Act in Tasmania; and
9. urges the government to consider marking the 75th Anniversary of the Universal Declaration of Human Rights by initiating consultation on a Human Rights Act for Tasmania.

 

Ms Webb (Nelson) –

Mr President, I am very pleased to rise to address this motion tabled in my name.  This motion is fundamentally about celebrating and commemorating the anniversary of the signing of the Universal Declaration of Human Rights (UDHR), which occurred on 10 September 1948, almost 75 years ago.  A milestone for humanity; a watershed  moment, literally forged in the blood, sweat and tears of World War II.

This 1948 watershed moment saw, for the first time, countries agree on a comprehensive range of fundamental rights and freedoms to which all of us are entitled.  It guarantees the rights of every individual, everywhere, without distinction based on nationality, place of residence, gender, national or ethnic origin, religion, language or any other status. 

Despite the declaration not being a binding document, it inspired more than 60 human rights instruments which, together, set an international standard and reflect the general consent of all United Nations member states on those fundamental rights laid down in the declaration.  Mr President, the signing of the UDHR is widely recognised as a milestone which has had a profound influence on the development of international human rights law.

In 1966, two further international covenants were adopted: the International Covenant on Economic, Social and Cultural Rights (ICESCR); and the International Covenant on Civil and Political Rights (ICCPR) which established the civil, political, economic, social and cultural rights to which everyone is entitled.  Collectively, these are known as providing the International Bill of Human Rights. 

Significantly, these covenants not only identify and articulate specific universal cultural and economic rights – such as freedom from torture, freedom from slavery, the right to form trade unions, the rights to freedom of religion, or the right to education – these covenants also identify the responsibilities placed on states to respect, protect and fulfil those rights.  By ‘states’, as a proper noun, we are referring to nation states who are the signatories to and those who have ratified these covenants, such as the Australian Government. 

Mr President, by ratifying and becoming parties to these conventions, states are agreeing to particular international obligations, defined by their specific responsibilities to respect, protect and fulfil the conventions’ expressed intent.  For example, the obligation to respect means that states must refrain from interfering with or curtailing the enjoyment of human rights.  For instance, the state must refrain from preventing people from speaking their birth language.  States are also expected to not only refrain from interfering with our rights but to actively seek to protect individuals and groups against human rights abuses.  For example, to intervene to prevent hate speech being employed against citizens because of who they are, or to intervene to require equal pay for equal jobs regardless of the gender of the person doing those jobs.

Further, when signing up to the covenant, states are committing to also fulfil the realisation of these rights by taking positive action to facilitate the enjoyment of basic human rights.  For example, it is the state’s obligation to ensure an appropriate interpreter is provided to ensure someone who may not speak English as a first language here and is before the courts, can understand the charges they are facing and are able to provide a defence.

The point here is these international human rights covenants are not just aspirational statements we signed up, they are calls to action.  By signing up to these calls to action we are committing to respecting, protecting and fulfilling the realisation of human rights for those within our jurisdiction.  This is highlighted by this year’s United Nations Human Rights Day slogan of ‘Dignity, Freedom and Justice for All’.  Specifically, the call to action to stand up for human rights is in the context of next year’s 75^th anniversary of the 1948 historic watershed moment of the declaration’s ratification.

The challenge we have been set is to not wait for December next year – the 75^th anniversary – before we act to stand up for human rights in our local jurisdiction, but to instead proactively use the next 12 months to take concrete action to progress, in a meaningful manner, the respect for and the protection and fulfillment of the fundamental human rights enshrined in the declaration.

This brings us to the question:  why does Tasmania need a human rights act?  To quote the Office of the United Nations High Commissioner for Human Rights:

Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties.

Which brings us back to Tasmania and our role at the domestic level to actively respect, protect and fulfil our formal human rights obligations.  As we are aware, there are instances where – as the state signatory to an international treaty – the Australian Government will establish a legal or regulatory framework which also requires the sub-national states and territories to adopt consistent regulatory and legal frameworks.

Last year, the passage through this parliament of the OPCAT Implementation Act 2021 was an example of this, the purpose of which – to quote from the act – was to enable the mandate set out in article 11 of ‘the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ adopted by the General Assembly of the United Nations on 18 December 2002, as amended and enforced for Australia from time to time.

However, at this stage, the domestic manifestation of a national human rights infrastructure – by which Australia purports to fulfil its obligation under the UN human rights covenants – is the formation of the Australian Human Rights Commission along with the national Human Rights Commissioners.  Yet, it is important to note that although, so far, the federal government may not have seen fit to legislate a national human rights act, there is nothing preventing states and territories from doing so.  As detailed in section (5) of the motion before us, Victoria, the Australian Capital Territory and Queensland have all implemented their respective human rights acts.

According to a recent report released by the national Human Rights Law Centre earlier this year called Charters of Human Rights Make Our Lives Better, it summarises the impact of these three interstate legislated human rights acts as:

These Charters have been quietly improving people’s lives, in small and big ways.  They have helped to ensure that people are treated with greater fairness, dignity and respect, stopping families from being evicted into homelessness, ensuring people with a disability receive appropriate support, and so much more.

This Human Rights Law Centre report presents 101 case studies which demonstrate how the Australian Capital Territory’s, Victoria’s, and Queensland’s human rights acts work in practice.  While the report does identify where these acts could be improved or strengthened, it provides a valuable resource which presents tangible examples of how these charters are implemented and importantly, how they have improved the lives and protected or restored the dignity of real live people in those jurisdictions.

To quote further from the report, page 8, these 101 case studies show how these charters have:

• Helped governments to identify and address human rights issues affecting people at an early stage of policy development.
• Ensured transparency around how governments and parliaments have considered people’s human rights.
• Promoted better understanding of human rights.
• Prevented human rights issues from escalating.
• Provided a way for people to resolve human rights issues by raising them with government and other agencies.
• Given people the power to take action and address human rights issues affecting them through complaint mechanisms and in the courts.

Time constraints prevent me from going into these 101 examples in any detail, but it is worthwhile emphasising the range of issues explored by these selected case studies.  For example, some case studies explore how recourse to human rights acts assisted against disproportionate COVID-19 public health measures or enabled an expectant mother to hold onto her housing tenancy or protected a domestic violence survivor from eviction or requiring escalators to be installed to provide accessibility.  It is a fascinating report and one which provides very significant and, in places, very moving insight into the human rights challenges many people still contend with just trying to live their lives, and where and how these existing human rights acts encourage, foster or bluntly require these challenges to be acknowledged and addressed, whether by a public authority, an individual or by the relevant government. 

There is so much we can learn from the case studies provided in the Human Rights Law Centre’s report to deal with some of the human rights challenges and abuses experienced by many Indigenous Australians and traditional owners.  It is worth noting that later this week, 25 November, will be the first-year anniversary since the groundbreaking Pathway to Truth‑Telling and Treaty Report was tabled in this parliament, a fundamental case of human rights requiring addressing.  Hopefully, we will receive a formal update from the Premier or minister on progress on that report’s recommendations to mark that significant anniversary, which is very timely in relation to December’s International Human Rights Day and week.

I expect that any progress on the Pathway to Truth‑Telling and Treaty Report would share a synergy and an urgency with the commencement of public consultation on a Tasmanian human rights act.  However, we do not need to look beyond our shores for justification to explore whether Tasmania should introduce legislation to implement a formal human rights infrastructure and if so, what it should look like.  Further, as has been raised previously on other matters in this place, just because reforms may or may not be occurring interstate, Tasmania’s elected representatives have a responsibility to act in the best interests of those who elected us here and now.  Closer to home, we have a clear recommendation from the Tasmania Law Reform Institute, based on public consultation with Tasmanians that Tasmania requires a legislated charter of human rights.  We have had that recommendation with us since 2007.  That is 15 years ago since the TLRI report entitled A Charter of Rights For Tasmania put the state parliament on notice that human rights protection in Tasmania is, and I quote from that 2007 report:

partial, disconnected and inaccessible.

The first two recommendations of the TLRI report are:

Recommendation 1 – Enhanced protection of human rights

The Tasmanian Law Reform Institute recommends that the law be reformed to provide and promote specific, better and accessible protection for human rights.

Recommendation 2 – A Tasmanian Charter of Human Rights

The Tasmanian Law Reform Institute recommends the enactment of a Tasmanian Charter of Human Rights

To recap for members and anyone listening who may be unfamiliar with the 2007 TLRI report, it provides a total of 23 detailed recommendations, canvassing not only the specific rights which need to be articulated in a legislated charter but also regarding other aspects, such as education programs, implementation and periodic review, as well as the role and obligations of authorities, courts, the executive and parliament.  A comprehensive report indeed.  I will not consume the Chamber’s time now by reading out all 23 recommendations; however, they can be found on pages 4-14 of the TLRI 2007 report.  For those wishing to familiarise themselves with the extent of that detailed work, I encourage people to access the full report on the Tasmania Law Reform Institute’s website.

Not only is the 2007 TLRI report extensive and thorough, it is the result of thorough and extensive public consultation.  This community consultation process was overseen by a specifically established human rights consultation committee consisting of the Tasmania Law Reform Institute (TLRI) representatives, as well as representatives from community advocacy groups and the private sector.

The committee formally commenced in September 2006, when the Tasmanian Attorney‑General, at that time, the Honourable Steve Kons MP, launched the TLRI issues paper, A Charter of Rights for Tasmania?, and called for submissions about the project from the Tasmanian community.  Mr President, 407 submissions were received; 355 of those were from individuals, and 52 were from organisations.

At the time of releasing the report in 2007, the TLRI stated in a media release that this was the largest number of original submissions received on any project undertaken by the institute.  Significantly, 383 – that is, 94 per cent of those submissions – supported the enactment of a charter of human rights to better protect human rights in Tasmania.

That significant number of submissions was received from a broad cross‑section of the community, including: people living in rural areas; family-based groups; Indigenous Tasmanians; political and non‑political organisations; pensioner groups; students; professional groups; members of the gay, lesbian, transgender and bisexual community; young people; people with disabilities; people from culturally and linguistically diverse backgrounds; women’s groups; and faith‑based groups.

The TLRI report, in summarising the submissions received, states:

While it is recognised that a process that calls for submissions cannot claim to result in a representative response in the way that analyses based on random selection do, the responses received are consistent with findings of an ACP Morgan Opinion Poll conducted in 2006 which showed that 81% of Tasmanians favoured the enactment of a Charter of Human Rights.  This was the highest support rate of any Australian jurisdiction.

That was from Page 153 of the TLRI report.

Yet, Mr President, despite this high degree of community engagement and support, and the very clear advice received from the TLRI 15 years ago, and while acknowledging some interim steps towards implementation by former governments, the parliament has not acted in that time; hence, the TLRI recently agreeing to re‑examine and contemporise the case for a human rights law in Tasmania.

It is expected this updating report will add further weight to the findings of its original report, and also to the ongoing public campaign for law reform in this critical area.

As noted in the 2007 TLRI report:

Tasmanians are not protected by any State or Federal Charter or Bill of Rights.  Australia is now the only common law country that does not have a national Bill of Rights.

The TLRI further summarises the situation, stating that in Tasmania a patchwork of sources provide a protection of human rights including the Tasmanian and Australian constitutions, international law, common law and state and federal laws.  However, the protections offered by these sources are fragmented and incomplete – working out what rights are protected, when and how, is a complex task. 

Yet this motion is not asking this Chamber, or the Government, to commit here and now to immediately implementing a legislated human rights charter for Tasmania.  Nor does it even ask us to commit to any particular model of human rights charter.

However, it does ask us to support moving forward Tasmania’s public debate on implementing a legislated charter of rights to address the current patchwork of fragmented and incomplete protections, as identified by the TLRI 15 years ago.

By supporting this motion, we are asking the Government to commence a contemporary public consultation process on a Tasmanian human rights act, to build upon the strong foundations set by the 2007 report, and presumably the TLRI’s imminent review of the current situation, as well as provide a concrete example of seeking to respect, protect and fulfil human rights protections and responsibilities.

While the TLRI presented a clear case for a Tasmanian human rights act, it did not provide a draft bill by which to do so, and nor was that their brief.  That would be the appropriate role for the parliament, and more specifically, the Government.

Hence, clause (9) of the motion, presents the crux of the motion, and it says

(9)     urges the Government to consider marking the 75^th anniversary of the Universal Declaration of Human Rights by initiating consultation on a Human Rights Act for Tasmania. 

The motion does not ask for the Government to repeat the community consultation regarding whether Tasmania should, or should not, implement a charter of rights, but instead to consider progressing that debate from where it has stalled and to begin the process of formally drafting and discussing how such a legislated charter of rights would look and operate to respect, protect and fulfil our human rights in this state. 

Further, it is important to acknowledge this motion does not seek to lock in the Government or any other member to support any future human rights bill, or model.  Instead, it merely seeks to reboot the stalled legislative discussion within the framework of the next 12 months leading up to the significant 75^th anniversary of that momentous international human rights milestone.  The 75^th anniversary, Mr President, is even more momentous than a platinum jubilee, and if we have seen all stops pulled out this year to celebrate an individual’s platinum jubilee, surely, we can do the same for this collective commemoration of equality, dignity and common humanity.

It is worth noting that support for this motion does not pre-empt the release of the TLRI’s imminent update on their initial 2007 report, in the sense that this motion’s call to action is framed within the period of the next 12 months.  As previously stated, it was due to a gap of more than a decade between the 2007 detailed recommendation for a legislated charter of rights that the TLRI agreed to undertake a review to potentially update and contemporise the current situation.  Initially, it was thought that review would already have been released by this time, but as acknowledged in the recent independent review of the TLRI, some of these projects have been unavoidably delayed due to resourcing and staffing constraints experienced by the institute.  However, it is hoped the finalised review will be released shortly.  In that case, it will be available to help inform the Government’s considerations of whether – and if so, how – to initiate community consultation processes on the development and implementation of a human rights act for Tasmania.

Mr President, I said at the outset that this motion was tabled in my name.  In fact, as much of the work is that we bring forward in this place, this motion is tabled and debated in the name of many other Tasmanians.  It is a great honour, when debating this motion, to be doing so for all those Tasmanians who have, and continue, to fight to protect and maintain inalienable human rights for themselves and fellow Tasmanians.  It is also a great honour, when debating this motion, to be continuing the advocacy of the many who have campaigned, and those who continue to campaign, for a Tasmanian human rights act. 

A vote progressing the formal consideration of a Tasmanian human rights act is not just a vote for ourselves, or for the benefit of a particular sector or industry.   It is a vote for all of us and, most importantly, it is a vote acknowledging the primacy of inalienable rights of all Tasmanians, no matter their gender, their race, colour of their skin, religion, sexual orientation or their country of origin.  As per the rallying call of the Alliance for a Tasmanian Human Rights Act, ‘My rights matter; Your rights matter; Our rights matter’.

To conclude, Mr President, when the Universal Declaration of Human Rights was signed on 10 December 1948, although a milestone, it was not considered an end in itself.  Instead, drafters of the document and signatories to the declaration at that time were clear: it was a beginning, an international collective starting point.  It sets a framework and a benchmark towards which we, as a global community, must continue to strive at the international, state and domestic levels.  Sadly, it is not an exaggerated or hyperbolic acknowledgement that over the last 75 years we have witnessed some historic shadows re-emerge.  They are not always on the periphery.  We have been forced to see that some of those lessons, presumed to have been irrevocably learned and permanently engraved on our collective memory, sadly may not be so.  Hence it is important to not lose sight of the fact that the designated annual observance of the UDHR signing anniversary is not only about celebrating a significant historic achievement, but also an opportunity for us to take an annual human rights health check.  How are we travelling in Tasmania right here and now, when measured against the Declaration of Human Rights?  How consistently and rigorously are we delivering this mandate, without fear or favour?  What achievements can we reiterate and reinforce?  Also, most importantly, where can ongoing improvements be made? 

To reiterate, in relation to that last question, Mr President, this motion presents a positive and constructive proposal to mark the 75^th anniversary of the UDHR, by the Government initiating public consultation on a human rights act for Tasmania, as we look ahead to that anniversary in 12 months time.  In the 75^th anniversary year of the signing of the UDHR, what better tribute could we pay to the foresight and humanity demonstrated by our forebears who drove and delivered that 1948 milestone?  To the Australian legislators who signed up to deliver on that declaration’s principles?  And to our former and current fellow Tasmanians working to protect and enhance our inalienable rights here and now and to formally engage with our community by initiating public consultation on a human rights act for Tasmania and how it can assist us to meet those agreed obligations of respecting, protecting and fulfilling our human rights?

Last but not least, I place on the record my thanks and appreciation to all members of the Alliance for a Tasmanian Human Rights Act and others for their dedication and work to progress this important issue on behalf of our community.  I applaud their efforts to remind us that there is more we can do to both celebrate and protect our fellow Tasmanians’ inalienable human rights as well as foster Tasmania’s human rights reputation.  I wish them well for this Saturday’s public event, highlighting how we can still do more in this fundamentally important space.  Just as we celebrate the historic milestone and watershed achievement of 10 December 1948, let us all work to progress Tasmania’s own historic human rights milestone and watershed achievements in 2023.

My rights, your rights, our rights matter.  I commend this motion to the House.