Why it's time to make human rights complaints accessible in the ACT

The past 18 months have necessitated extraordinary government intervention in our lives.

Now, as we learn to live with the presence of COVID in the community and face the prospect of new variants bringing future disruptions, we must ensure that our human rights mechanisms can meet the challenges of this new landscape.

Across Australia, COVID has increased awareness and support for better human rights protections. A recent poll of 1000 people, conducted by the Human Rights Law Centre, found that more than 80 per cent of those polled would like to see some form of a charter of rights.

Here in the ACT, over 500 people have signed a petition calling for the ACT’s Human Rights Act 2004 to be amended to include a human rights complaints mechanism.

The Legislative Assembly will examine this issue in 2022 and may call an inquiry into the matter.

Why the interest in changing our human rights legislation here in the ACT? The petition recognises that, while we should be rightly proud of our Human Rights Act, the Act doesn’t provide people with an accessible, timely means of seeking redress when their rights are breached.

This can be contrasted with the approach in Queensland where people can make a complaint to the Queensland Human Rights Commission if they believe that a public authority has breached their human rights.

Similarly, in Victoria, people can complain to the Victorian Ombudsman if public authorities have breached their human rights.

If your rights are breached here in the ACT, how do you seek redress? You have to instigate legal action in the ACT Supreme Court, which is clearly out of reach for most Canberrans.

The Queensland Human Rights Commission saw a marked increase in human rights complaints related to the pandemic.

In 2020-21, one in four complaints to the Commission were COVID-related. There were surges in complaint numbers due to lockdowns and other pandemic response measures, including issues arising in hotel quarantine and border restrictions.

The Commission noted that having an express human rights framework was of “critical importance” to assessing whether decisions struck the right balance.

The Victorian Ombudsman similarly dealt with a range of COVID human rights complaints, including complaints about the hard lockdown of public housing towers in Victoria.

Notwithstanding our current lack of a human rights complaints mechanism, the Commission has also seen a significant increase in people contacting us with COVID-related concerns. Many of these concerns have highlighted the far-reaching human rights impacts of the pandemic on our lives.

We have worked with vulnerable members of our community to resolve issues such as equal access to services, employment and education. COVID has also shown the need for greater understanding by government decision-makers of how human rights work.

In the ACT, public authorities must act consistently with human rights and properly consider human rights when making decisions.

Many of the complaints that the Commission has received are against a public authority or a government agency and involve human rights issues. However, as the Commission does not currently have the ability to handle human rights complaints, there is no easy way to challenge the human rights failures that can arise in government decision-making.

In the Commission’s experience, most of these failures are not deliberate but result from human rights being inadvertently overlooked or poorly understood by decision-makers.

A human rights complaints mechanism here in the ACT would provide a powerful tool for individuals to vindicate their rights. The enactment of the Human Rights Act provided a vehicle by which government said to the community, “We are committed to protecting your rights”.

An independent complaints process would add the critical rejoinder: “And here’s a way of raising your concerns to us if you think that’s not working well.”

We would favour an independent complaints handling model based on conciliation and mediation at the first step. This would give government a way to engage with people, with a skilled, independent conciliator to help guide the process. A conciliator can help to identify practical and systemic solutions and identify options. Sometimes a decision-maker has acted in a certain way because they think they have to, or because that’s the way they’ve always done it. That’s not necessarily the best or the only way to do it. The conciliation process can help unpack that.

An accessible complaints mechanism for people to raise their human rights concerns also reduces risks for government services. It builds relationships between government and community and can help address systemic issues more quickly, more efficiently and with greater flexibility.

We also believe it will increase community trust in government. That’s a significant benefit to government in the current pandemic, as well as into the long-term. It is ultimately an investment in our democratic system.

Dr Helen Watchirs is President and Human Rights Commissioner of the ACT Human Rights Commission.