Human Rights Bill 2018 Case Study - Dworkin’s Contemporary Liberal Rights Theory - Benthams Utilitarianism - Law Assessment Answer

Assessment Task:

Human Rights Bill 2018 Case Study Law Assessment Answer

QUESTION 

On 31 October 2018, the Queensland Attorney-General and Minister for Justice, Yvette D’Ath, introduced the Human Rights Bill 2018. In her introduction to the bill Ms D’Ath stated that ‘this bill recognises the inherent dignity and worth of human beings. It recognises that the equal and inalienable human rights of all persons are essential in a democratic and inclusive society that respects the rule of law’. The Human Rights Act 2019 (Qld) became law on 27 February 2019 after the bill was passed in Parliament. The following is extracted from the Attorney-General’s introductory speech:

 ‘The bill protects 23 human rights. These are primarily civil and political rights drawn from the International Covenant on Civil and Political Rights but also include two rights drawn from the International Covenant on Economic, Social and Cultural Rights and one from the Universal Declaration of Human Rights. The bill also explicitly recognises the special importance of human rights to the Aboriginal peoples and Torres Strait Islander peoples of Queensland as Australia’s first people and their distinctive and diverse spiritual, material and economic relationship with the lands, territories, waters and coastal seas. It also recognises the particular significance of the right to self-determination to Aboriginal peoples and Torres Strait Islander peoples. 

The primary aim of the bill is to ensure that respect for human rights is embedded in the culture of the Queensland public sector and that public functions are exercised in a principled way that is compatible with human rights. The term ‘compatible with human rights’ is used throughout the bill. It is a unifying concept that is central to many provisions. The bill provides that an act, decision or statutory provision is compatible with human rights if the act, decision or provision does not limit a human right, or limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with clause 13 [human rights may be subject to reasonable limits than can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom]. Therefore, the bill acknowledges that human rights are not absolute and may need to be balanced against the rights of others and public policy issues of significant importance. Clause 13, the general limitations clause, sets out the factors that may be relevant in deciding whether a limit on a human right is reasonable and justifiable. While these factors are only a guide, they are intended to align generally with the principle of proportionality, a test applied by courts in many other jurisdictions to determine whether a limit on a right is justifiable.

 The bill aims to promote a discussion, or dialogue, about human rights between the three arms of government: the judiciary, the legislature and the executive. Importantly, in this model parliament remains sovereign and may, if it wishes, intentionally pass legislation that is not compatible with the human rights in the bill. In this sense, the bill draws on the tradition of legislative protection of human rights associated with the United Kingdom rather than the United States Bill of Rights. This bill, once enacted, will be an ordinary act of parliament. 

Part 3 of the bill sets out the application of human rights in Queensland to the parliament, the courts and the executive. Parliament will scrutinise all legislative proposals—bills and subordinate legislation—for compatibility with human rights. The bill requires all bills introduced into parliament to be accompanied by a statement of compatibility and statements of compatibility to state whether, in the opinion of the member who introduces the bill, the bill is compatible with human rights. The bill also provides for parliament, in exceptional circumstances, to make an override declaration in relation to an act or a provision in an act. If an override declaration is made, to the extent of that declaration, the Human Rights Act does not apply to the act or provision. So far as is possible to do so, the courts and tribunals must interpret legislation in a way that is compatible with human rights. 

The bill requires all statutory provisions, to the extent possible consistent with their purpose, to be interpreted in a way that is compatible with human rights and, if a statutory provision cannot be interpreted in a way that is compatible with human rights, the provision must to the extent possible consistent with its purpose be interpreted in a way that is most compatible with human rights. The bill also provides that the Supreme Court may, in a proceeding, make a declaration of incompatibility to the effect that the court is of the opinion that a statutory provision cannot be interpreted in a way compatible with human rights. 

But, as in Victoria, there will be no stand-alone legal remedy for a contravention of this bill. Rather, the bill adopts an enforcement mechanism known as a piggyback cause of action. A contravention of the Human Rights Bill will not create a right to any new remedies. It will create a new ground of unlawfulness—that is, a breach of the Human Rights Bill will be unlawful. Where an applicant has an existing right to claim for a remedy on another independent ground of unlawfulness, then that person can piggyback the human rights claim onto that existing claim. The remedy is the one the person would have been entitled to anyway on the basis of the existing claim.’

 Critique the new legislation and the Minister’s statements with respect to the following theories: 
• Bentham’s Utilitarianism
 • Dworkin’s Contemporary Liberal Rights Theory 
• Critical Legal Studies

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