Talking human rights with Queensland Human Rights Commissioner Scott McDougall

On 12 May, IPAA Queensland was delighted to host our first Stewards on the couch event for 2020. The event was sponsored by our partner, Holding Redlich, and as our first fully virtual event, live-streamed by QUTeX.

Over 350 registered to watch Stewards on the couch guest Scott McDougall, Queensland Human Rights Commissioner, in conversation with Madonna King.

Scott outlined the role and work of the Queensland Human Rights Commission (QHRC), the challenges and vision for realising human rights for everyone in Queensland. The conversation highlighted Scott’s entrepreneurial streak – for advocacy and public purpose. Some of the information and insights he shared are captured here.

On becoming Queensland’s first Human Rights Commissioner

At the time I applied it was the Anti-Discrimination Commission [Queensland], and the Human Rights Act [the Act] was still a dream really. What made me apply? Look, after 16 years at Caxton [Legal Centre], it’s a long time. I remember saying to the Attorney-General during my interview, you know I’ve been banging my head against the brick wall of government for years. It’d be nice to be on the inside. And without giving too much away, she said well you might still be banging your head against the wall from inside government. I think to some extent I am.

What does the QHRC do?

The QHRC has two core functions – to promote an understanding and acceptance of human rights in Queensland and to conciliate complaints and to handle complaints. Often those roles can conflict, so we have to be very careful in our promotional work that we maintain the perception and the reality of independence.

For example, right now there’s a big issue with who’s actually keeping an eye on prisoners in the COVID crisis because the official visitors are not visiting the prisons. A lot of prisoners are in lockdown in quarantine. They’re not getting their daily exercise which is a requirement of the Mandela rules. There are quite a few issues for people who are in prison.

And there is a gap, I think, in Queensland that we’ll be talking to the Attorney-General and perhaps the Premier about, where we do need an office of an independent inspector to look after prisoners. So, in advocating for that we need to be mindful that we’re also – not really an arbiter of complaints – but we can publish information about unresolved complaints.

In terms of the complaints that have come through, I think we’ve had about 160 inquiries since the 1st of January and because of that requirement to lodge the complaint with the agency first, we haven’t had a high volume of complaints – I think it’s just over 50 complaints received.

About five of those relate directly to COVID and the rest are a mix of probably what we would have expected. So, issues in child safety, issues with prisoners, issues with police, some with the right to access health services – and that’s a right that’s only recognised in Queensland not in the other states … and one that I think we’re going to see come up and I hope that regional Queenslanders come to understand and appreciate this right that is available to them.

So, in terms of things like breast screening, for example, in regional remote areas – access to those sorts of services. That’s an economic, cultural and social right and it’s for the courts to recognize that those rights have to be progressively realized.

It is subject to the resources of the state, yes, but over time I think we will see some interesting complaints that will seek to extend the reach of the health services into regional Queensland.

How big is the Queensland Human Rights Act?

It’s very huge. So, the right to privacy is a is a big one, and many of the cases that came out of Victoria were about the right to privacy and tied up in the right to privacy is the right to autonomy. And also, the right to receive information is tied up in the right to freedom of expression. So that’s not something you would see freedom of expression and think – that’s the right to receive information.

Another example is freedom against torture includes the right not to be subjected to medical treatment without free and informed consent.

We made a submission on the euthanasia bill. If you apply human rights analysis there is no right or wrong answer to the issue. It’s the right to life, but there’s also the right to autonomy and the freedom to choose to end your life – they’re competing with each other.

There’s twenty-three categories of rights and they are very broad.

The right to self-determination for Indigenous communities?

Well I think ultimately that there’s the right to self-determination that’s acknowledged in the preamble of the Act, but it’s not entrenched as an enforceable right. I’d like to think, with the review of the Act in four years’ time, that might be something that is reconsidered.

I think that there needs to be a conversation between the government and Indigenous communities in Queensland about what a right to self-determination would actually look like. Really what needs to happen is some power sharing.

On the Act, new legislation, and a collision course with government?

A process that’s part of the Act that’s separated from complaints … when new legislation is made there’s a requirement that a compatibility statement be tabled and then the legislation goes to a committee for the human rights to be discussed and considered.

Late last year in the protest laws – the way that they were introduced – there was a very short time to prepare for the committee process, and the way that the committee system operated. We came on before the police, so we only became party to the police justification after we’d actually given our evidence to the committee.

The beauty of the Act and the beauty of Section 13, because it provides this principled structured way of looking at whether a limitation on a human right can actually be justified in a free and democratic society. So, I’m quite comfortable being on a collision course with a government where the debate is structured around those principles.

Impact of the pandemic on human rights in Queensland?

It’s been absolutely massive. To think that you would bring in a Human Rights Act on 1 January and then a few months later to have a global pandemic with the sort of impacts on human rights.

So obviously freedom of movement has been a huge impact and it needs to be said that the right to life imposes positive obligations on governments to protect citizens. I think the government both at a national and state level has done a superb job in doing that.

And the public have done a superb job in in complying with the restrictions, but the impact on human rights is profound and I think there’s a really good opportunity here for the public to understand and appreciate that the intense frustration that sometimes spills over into anger that they’re experiencing about being locked down – perhaps being forced into a hotel where they can’t even open the window to get some fresh air. Those are impacts on your human rights.

The QHRC can’t set aside the original decision, is it a toothless tiger?

There has been that criticism and I think the four-year review of the legislation will squarely look at that. Having said that I’ve already seen the power of the Act by people making complaints, because it’s important for people to understand that you have to complain to the agency first, and then a period of 45 business days has to elapse before you can bring in a complaint to the QHRC.

So that period is a really good opportunity for the agencies to actually nip it in the bud before it actually comes to us. We’re finding that we’re able to actually resolve a number of complaints at the very initial inquiry stages. I’ve seen that a number of times and I think that really speaks to the power of the Act.

On applying the Act, it’s about dignity

The obligation in the Act is to give proper consideration to human rights when making a decision and if you apply that literally to every single decision that’s made and expect paperwork around that, then the operations of government are going to grind to a halt pretty quickly.

So there has to be a practical common-sense approach and … that’s certainly what I would encourage and promote. Obviously the more serious the impact that there is going to be on someone’s human rights, the better-quality consideration that needs to be given to them.

I really think this is a great opportunity to actually think about human rights. So, when you look at every human right, really at the core of each right is dignity. That would be my message to public servants generally – it’s when you’re grappling with the human rights act, always think dignity.

Because if you’re making a decision that has an impact on the dignity of another person, the Act basically requires you – it’s fairly simple – to look for some alternative ways of achieving your objective that would have less impact on the dignity of that person. Really when you boil down to it, that’s what it is.

Agencies and public servants – are they on your side?

I’ve been really impressed, as I said about the willingness to actually see this as a way of improving decision-making. A lot of work was done in the agencies around their own internal complaint mechanisms so that they did pick up these issues before they come to us, and I’d like to think that that is working. There’s a lot of victories that we’re not even seeing at that front-end level.

What is the biggest challenge for realising human rights?

I guess the biggest challenge is indifference and governments just giving lip service to human rights. I think it’s important that governments are held to account.

So, I guess one example of that is the [parliamentary] committee system in Queensland. It’s important those committees, when they’re conducting their inquiries, really meaningfully engage in human rights and look at the justifications that are put up.

Your vision for human rights in Queensland?

I would really like, first of all, for everyone in Queensland to have a real appreciation of their human rights and value them, and the ability to actually access them and to access remedies when they have been infringed. People know innately I think when their dignity has been interfered with, and so being able to actually act on that – that would be success for me.

In terms of public servants, I would really love it if it just became second habit for them to think – this decision I’m making, is there a human right that’s engaged by it? What other ways can we do this?

I’m really proud that we’ve been able to get this Act in place. I really do think it positions Queensland in the future to project itself as a modern world city where we have this act here and where government is accountable and the excesses of government that we’ve seen in Queensland’s past, the Act does operate as a constraint on those.

So, I am proud but … there is a gap between rhetoric and reality, and there’s no doubt going to be some tension points.

If you would like to know more about Queensland‘s Human Rights legislation, see https://www.qhrc.qld.gov.au/your-rights/human-rights-law

 

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