law reform Archives - Queensland Advocacy Incorporated

Priorities for Federal Discrimination Law Reform – QAI Submission

QAI made a submission in November 2019 to the Australian Human Rights Commission on the Priorities for Federal Discrimination Law Reform. Upwards reaching arms labelled with key tenants of human rights. Prosperity, equality, freedom, justice and hope.

Summary of QAI’s Recommendations:

QAI supports the summary of proposed priorities for federal discrimination law reform.
QAI considers that the Federal Government should undertake structural and substantive reform of the current discrimination laws, consolidating the separate discrimination statutes into a single Act that is comprehensive, consistent and extends reasonable adjustments to impose a specific positive duty across all protected attributes in all protected areas of life.
QAI submits that existing protected attributes should be extended to include carer’s responsibility, volunteers and interns, accommodation status and subjection to domestic and family violence.
The legislation should reflect and incorporate the obligations Australia has assumed at international law.
Gaps in coverage for carer’s responsibility, volunteers and interns, accommodation status and domestic and family violence must be addressed.
All permanent exemptions should be reviewed not only in light of the overall purpose of discrimination law to promote equality and fair treatment, but also having regard to the purpose and intent of the CRPD.
Current compliance mechanisms administered by the Commission are necessary and helpful and QAI supports their continuation. We note the significant problems with the temporary exemptions available under the DDA and consider that the granting of exemptions can undermine the strength and power of discrimination law.
QAI strongly supports the Commission’s position that there is a need for greater awareness-raising activities and possibly industry support to promote compliance, as well as robust review processes to measure the effectiveness of the Disability Standards. QAI considers that the introduction of voluntary audits, a general inquiry function and positive duties would be of significant value.
QAI strongly supports the introduction of a positive duty for public entities to proactively take measures to eliminate unlawful discrimination and harassment and advance equality.
QAI agrees that complaints processes must be available and accessible for all people.
QAI notes that the nature of confidential conciliations reduces the likelihood that matters will resolve and places the complainant in the position of having to proceed to a less accessible and available forum, which is a significant limitation of discrimination law.
QAI proposes extending the timeframe to 12 months, with extensions available, to cover complex disputes and circumstances where vulnerable complainants have been unable or unwilling to take action earlier.
QAI strongly supports the provision of greater clarity about the ability for representative actions to be brought and agrees this would enable a greater focus on systemic discrimination issues and reduce the pressure on individual complainants.
QAI submits that there should be no costs orders made against a complainant, except in very exceptional cases where there has been a clear demonstration of a deliberate and vexatious misuse of process. Strong safeguards should be in place regarding legal representation.
QAI considers that there must be measures introduced to address the particular vulnerability of persons experiencing intersectional discrimination that includes harassment and vilification. Protections for vilification under federal discrimination law should be at least equivalent to the protections offered by state law and should attract both civil and criminal penalties in appropriate cases.
Discrimination should not remain the sole remedy under Commonwealth law for a vulnerable person who has experienced an unlawful breach of their human rights. It is time to enact a federal Human Rights Act or Charter, which translates the international human rights Australia has agreed to respect and protect into binding domestic law.

You can read the full submission here.

Mistake of Fact Submission

QAI made a submission to the Queensland Law Reform Commission Inquiry into the Mistake of Fact defence.

Initial Recommendations

Retain mistake of fact defence, because some people with intellectual impairment can misinterpret, for example, body language, or verbal cues if CALD, but:

A proper evidentiary basis must exist before the court directs a jury on this defence e.g. where the woman has shown little or no outward manifestation of any lack of consent (as opposed to where there is evidence of accused’s use of force/violence, and resistance by complainant).
Provide clearer guidance in the legislation for what constitutes a “reasonable” basis for an accused to believe in consent
Provide guidance for jury directions that explain the above.

You can read the full submission here.

Criminal Code (Child Sexual Offences Reform) Submission

QAI made a submission in regards to the Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Bill.

Here is an excerpt from the submission of our recommendations:

Recommendations

QAI supports the measures in the Bill.
The State Government must do more to ensure that people with intellectual disability who have committed very minor sexual offences get better support in the community rather than detention.
Take steps to improve the supports, particularly behaviour supports, available to people with intellectual disability who have been convicted of child sexual offences.

You can read the full submission here.

QAI Response to Proposed Reform on Tendency and Coincidence Evidence

30/4/19 – QAI has broken down our support on the proposed reforms and you can see our full submission to the Department of Justice and Attorney-General here.

black and white hallway lined with prison cells

Fitness to Plead or Stand Trial Submission by QAI

QAI’s Recommendations to the Tasmania Law Reform Institute

QAI supports and recommends to this inquiry the 2014 position of the Australian Law Reform Commission (‘ALRC’): that the test for fitness should be reformed consistently with the National Decision-Making Principles.
People with intellectual impairments are capable of making decisions about their own lives. Intellectual impairment on its own, however defined, should not be a basis on which to deny anyone participation in criminal proceedings.
The tests for fitness to plead and to stand trial should not be de facto tests of a person’s cognitive capacity: that is, they should not be about a person’s intellectual ability to comprehend specific aspects of legal proceedings and trial process.
The tests should focus on a person’s decision-making ability, with support, and in the context of the particular criminal proceedings which they face. That is, the tests for fitness should take into account the supports mandated by Article 12 of the Convention on the Rights of Persons with Disabilities.

Click here to read the full submission

Upwards reaching arms labelled with key tenants of human rights. Prosperity, equality, freedom, justice and hope.

Media Release – Qld passes Human Rights Bill

Queensland Advocacy Incorporated

MEDIA RELEASE

27 February 2019

For immediate release

Rights ON Queensland! High Score for Queensland Human Rights Protection

The Queensland Government made history today, passing legislation protecting the human rights of all Queenslanders. The Human Rights Bill, passed in Parliament this afternoon, protects 23 fundamental human rights and establishes responsibilities by public entities making decisions that impact on the rights of all Queenslanders.

Leading disability advocacy organisation Queensland Advocacy Incorporated (QAI) applauds the Palaszczuk Government for this historic law reform. QAI Director Michelle O’Flynn noted the important protections that this Bill includes for people with disability in Queensland.

‘We are particularly excited by the inclusion of the economic, social and cultural rights to education and health in the Bill,’ Ms O’Flynn said today. ‘These are fundamental human rights that are not equitably enjoyed by people with disability and mental illness in Queensland. People with disabilities are also particularly vulnerable to uman rights violations such as discrimination and cruel and degrading treatment, so this new legislation offers much needed protection,’ Ms O’Flynn said.

The Act will commence operation in two phases. On 1 July 2019, the Anti-Discrimination Commission will be re-branded as the Queensland Human Rights Commission and from 1 January 2020, the complaints mechanism will commence, which will allow people who consider that their human rights have been violated by a public entity to lodge a complaint directly with the Commission.

Emma Phillips, Senior Lawyer – Law Reform and Systems Advocacy with QAI who has worked on the campaign for a Human Rights Act for the past four years, noted that the inclusion of this complaints mechanism will make the legislation workable and practical and provide ordinary people with an accessible way to have human rights issues heard and responded to. ‘With the inclusion of this complaints mechanism, along with the economic, social and cultural rights to education and health, Queensland is leading the way in human rights protection in Australia.’

In enacting human rights legislation, Queensland joins the Australian Capital Territory and Victoria, which have had human rights act or charters since 2004 and 2006 respectively. QAI hopes that the passage of this legislation will prompt the remaining states and territories without human rights protections and the federal government to swiftly follow suit.

‘We call upon the federal government to respond to the increasing calls to enact a national Human Rights Act, which translates the commitments Australia has made at an international level, by signing and ratifying human rights treaties, into protection that is meaningful for all Australians,’ Ms O’Flynn said.

Queensland Advocacy Incorporated (QAI) is an independent, community-based systems and individual advocacy organisation and a community legal service for people with disability. Our mission is to promote, protect and defend, through systems and individual advocacy, the fundamental needs and rights and lives of the most vulnerable people with disability in Queensland.

For more information, please visit the campaign website: humanrights4qld.com.au.

Media contact: Emma Phillips: (07) 3844 4200

Information provided in this release is not intended to constitute legal advice and should not be construed as such. You should obtain your own legal advice before applying any information provided in this release to specific issues or situations.