Advocates in South Australia and New South Wales are pushing for the introduction of Human Rights Acts, in line with Victoria, Queensland and the Australian Capital Territory. While these Acts promise to deliver human rights to all people, especially the most vulnerable, the Victorian and Queensland Acts have failed to maintain the human rights of our most vulnerable people, particularly children. ‘Override’ provisions have allowed the passing of laws that have disregarded the very rights we are told these Acts are there to protect.
We see examples of these override provisions being used to increase the severity and length of prison sentences against children found guilty of criminal offences. ‘Adult Time for Violent Crime’ and ‘Adult Crime, Adult Time’ were the catchphrases used by Victoria and Queensland governments respectively.
The rights provided in the Victorian Charter of Human Rights and Responsibilities Act (Victorian Act) and the Queensland Human Rights Act (Queensland Act) are clear. Section 23(3) of the Victorian Act provides that “A child who has been convicted of an offence must be treated in a way that is appropriate for that child’s age.” Section 33(3) of the Queensland Act also provides that “a child who has been convicted of an offence must be treated in a way that is appropriate for the child’s age.”
Concerningly, the override provisions is what makes it possible for Victorian and Queensland parliaments to introduce laws that are clearly inconsistent with their own Human Rights Acts. Section 33(1) and (3) of the Victorian Act allows for the passing of new laws that are incompatible with the rights set out in the Victorian Act if there are “exceptional circumstances.” The term “exceptional circumstances” is not defined in the Victorian Act.
Section 43 of the Queensland Act allows the Queensland Parliament to also override legislated human rights in “exceptional circumstances’”. Examples of such circumstances are stated in the Act to include “an exceptional crisis situation constituting a threat to public safety, health or order.”
The mechanisms allowing the deployment of these provisions are vague. What exactly constitutes “exceptional circumstances”?
Both Victoria and Queensland governments have not only used these override provisions to enact harsh new sentencing laws against children and young people, they have boasted about overriding these human rights laws as something to be proud of.
In Queensland’s “Adult Time, Adult Crime” legislation, the statement about exceptional circumstances prepared by the Minister for Police and Corrective Services, confirmed that the exceptional circumstances used to justify the overriding of Queensland’s Human Rights Act were to address an ‘acute problem presented by a small cohort of serious repeat offenders who engage in persistent and high-risk offending.’ Premier Crisafulli, then boasted about these laws, saying “[e]xpanding Adult Crime, Adult Time sends a strong message to young thugs.”
Take a minute to think about that.
The Queensland government, with all its purported resources, could find no other solution to deal with this ‘small cohort’ other than to eradicate the human rights of all children and young people, and for a seemingly unrestricted period of time.
The question begs: What is an exceptional crisis situation? Who decides what an exceptional crisis situation is? Can someone challenge the use of the overriding provision? How do we know when the ‘crisis situation’ is no longer a crisis? Who decides when the so-called crisis situation is no longer a crisis?” And if the “crisis” does cease, will the Adult Crime, Adult Time laws be repealed so that children’s human rights can once again be upheld?
During the recent community forum on the introduction of a Human Rights Act in South Australia, co-author of this article, Tabitha Lean, criticised the overriding provisions of the Victorian and Queensland Acts. She highlighted not just the willingness of governments to deploy the override provision to advance their own “tough on crime” agendas, but also the way political leaders demonstrated great delight in announcing the fact that these laws are incompatible with the Human Rights Acts of their state, showing little regard for the effect that these draconian laws have on some of the most vulnerable people in our community – our children.
Tabitha used the so-called “human-rights prison” in the Australian Capital Territory to contextualise her questioning: “I visit prisons all around the country. The ACT, with its so-called human rights prison, is one of the most punitive in the country… I want to make that point because criminalised and incarcerated people are some of the most marginalised people in our community. That includes people in psychiatric incarceration, as well as criminal incarceration, as well as youth detention.”
Tabitha went on to question the effectiveness of a Human Rights Act in South Australia, asking, “So what does that mean for us in terms of not only accessing [protections built into a Human Rights Act], but how do we hold the state accountable when they’re not actually upholding our human rights?”
These are crucial questions we should be asking to understand how a Human Rights Act, and any supporting mechanisms, could be constructed to ensure such laws are not just lip service from a government trying to grab brownie points on a world stage by claiming it supports human rights. The most vulnerable people in our community should have effective access to mechanisms to hold the government to account for breaching the rights provided in such legislation. Human rights should not be an aspiration able to be removed at the whim of the government where they are unable to develop intelligent, rights-based solutions to acute community issues.
The panel agreed that the issues raised by Tabitha were valid, but offered no substantial solutions.
The enactment of human rights treaties and conventions which Australia assigns to is essential for the lawful protection of human rights in Australia. The idea that a state based Act could protect human rights signals for some, hope that humans will be treated like humans, and not subjects existing just to benefit and progress political and personal agendas.
However, as long as Human Rights Acts contain override provisions with vague definitions of “exceptional circumstances,” enabling these provisions to be arbitrarily deployed to breach people’s human rights, these laws will remain ineffective.
