Human rights won't prevent sensible reform. This is about stopping government overreach

Human rights are vital to sensible law reform. The debate over illegal tobacco shows more work is needed to explain what the Human Rights Act says, how it works and, importantly, how it promotes and protects the rights of law-abiding ACT residents against government overreach or failures.

Subscribe now for unlimited access.

or signup to continue reading

A case study in the commission's annual report highlights the protective power of human rights. When sewerage flooded the public housing property of a vulnerable Canberran, the Commission initiated an inquiry.

As a result, the person was transferred to alternative accommodation better suited to their circumstances.

Human Rights are also a key plank of the scrutiny process for draft laws introduced by government.

An important feature of the scrutiny process is that most human rights are not absolute and may be limited to pursue legitimate goals.

Limitations on rights must be reasonable and "demonstrably justified in a free and democratic society". A proportionality test is set out in the Human Rights Act.

To use a recent example, limiting the human right of freedom of expression to prevent hate speech is reasonable, but I, and many Canberrans, agreed that limiting freedom of expression by seizing satirical posters from the Dissent Bar in Civic did not pass the test. Although Australia is required by international law to prohibit certain harmful forms of expression, a democratic society tolerates a wide range of political speech.

Satirical portrayals of political leaders who violate human rights are legitimate, even if they offend some people.

Human Rights Commissioner Penelope Mathew and a service station raided earlier this year. Pictures supplied

Stopping businesses from selling illicit tobacco is obviously not in the same category: it is clearly a legitimate purpose to stop such sales.

The scrutiny process helps to anticipate any human rights issues and prevent problems arising later.

This is how law-making in the ACT works. Draft laws are vetted by the human rights scrutiny team within the Justice and Community Safety Directorate.

My human rights team may also comment on legislation if consulted and during the confidential cabinet submission process.

We will not participate where the topic is low risk, leaving matters to the team within the directorate, and, once the law is being considered by the Legislative Assembly, the standing committee on legislative affairs.

Human rights commissions are not routinely involved at the confidential stage in Victoria or Queensland. The ACT process has led to better rights protection for all Canberrans.

Following scrutiny, draft laws will come to the Legislative Assembly. Generally, this involves a public political debate where all manner of interests will be aired and voted on.

Once enacted, the laws may end up before the courts. When applying the law to an individual case, a court may decide the law is incompatible with human rights.

In such cases, the ACT Supreme Court may issue a declaration of incompatibility. The Legislative Assembly then has to decide what to do.

This process is part of the "dialogue model" of human rights legislation.

There is a conversation between the legislative and judicial branches of government. In the ACT, the legislature gets the final say.

Human rights are no barrier to sensible, evidence-based reforms appropriate in a liberal democracy. They protect individuals from government overreach. There is little point in having a Human Rights Act if it is abandoned in a knee-jerk reaction to a non-issue.

I welcome considered amendments to the act - not to make it less protective of rights, but more so. With respect to the topic of illegal tobacco sales, I call for the right to the highest attainable standard of health to be included in the Human Rights Act.

I also call for the act to be strengthened with respect to ACT police officers acting under territory laws.

The police actions with respect to the Dissent Bar invoked federal, rather than territory law and were met with surprise, good humour and a public forum on freedom of expression at the bar (in which the commission was pleased to participate).

However, there have been other, very concerning examples highlighting the need for strengthened human rights protection with respect to our police force. The ombudsman's report It's not him concerning the young Aboriginal person arrested on a bus and then searched despite the knowledge that he was not the suspect, is one such example.

The ACT government should be working with the Commonwealth Attorney-General to include the Human Rights Act, in so far as ACT policing is concerned, in the regulations to the Self-Government Act.

This will ensure it is indisputable that ACT policing officers acting under territory laws are bound by the Human Rights Act.

Finally, I call on the government to properly resource the Human Rights Commission's education function to ensure everyone is aware of what is in the Human Rights Act and how it works.

• Penelope Mathew is the ACT Human Rights Commissioner.
  

More from Opinion