What are human rights and how are they protected?

Human rights are the basic rights and freedoms inherent in every person. They are principles about how you should be treated, and are based on respect and dignity.

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In some jurisdictions, human rights are recognised in and protected by legislation, often referred to as a “Human Rights Act”, a “Bill of Rights”, or a “Charter of Rights”. In other jurisdictions, where there is no Human Rights Act at all, human rights are not explicitly protected by legislation.

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In Australia, there are Human Rights Acts in the Australian Capital Territory (ACT), Victoria and Queensland. There is no Federal Human Rights Act in Australia.

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This article discusses some of the human rights that may be relevant in prison with reference to human rights protections under the Human Rights Act 2019 (QLD) in Queensland. The legal information provided in this article is no substitute for legal advice. If you wish to take any action arising from matters raised in this publication you should consult a lawyer in the jurisdiction where you are incarcerated.  

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Can human rights be limited?

In Queensland, the government can lawfully limit or restrict human rights only if it has a good reason and it does so in a reasonable way which can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. In deciding whether any limitation on a human right is reasonable and justifiable, the relative importance of the limitation should be weighed against the importance of the human right, including whether there are any less restrictive and reasonably available ways to achieve the purpose of the limitation. (s 13 Human Rights Act 2019 (QLD))

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What are some common human rights that may be impacted for people in prison?

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Right to Humane Treatment When Deprived of Liberty

(QLD Human Rights Act; s 30)

The Queensland Human Rights Act states that if you are deprived of your liberty, you must be treated with humanity and respect for your inherent dignity as a human being.

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This right may be relevant if you are subject to ill-treatment or harsh prison conditions. For example, this right may be relevant if you are subjected to extended periods in solitary confinement – which is the isolation of a person in a cell for 22 hours or more per day without meaningful human contact.

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Cultural Rights of Aboriginal and Torres Strait Islander People

(QLD Human Rights Act; s 28)

In the Queensland Human Rights Act, the distinct cultural rights of Aboriginal and Torres Strait Islander people are protected. This includes their right to enjoy, maintain, control, protect and develop their identity, cultural heritage, language, kinship ties and relationship with land and/or waters.

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For example, First Nations’ cultural rights can be relevant if you want to attend an important family funeral or Sorry Business in the community, or if you want to be transferred to a different prison in order to be closer to and receive visits from your family.

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Access to Health Services

(QLD Human Rights Act; s 37)

The Queensland Human Rights Act provides a right to access health services without discrimination. If you are unable to access the appropriate level of medical care for the seriousness of the medical issue you are experiencing, your right to access health services without discrimination may be affected.

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For example, if you need to access essential medicines and you are unable to do so because you are in prison.

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Other Human Rights

Here is a full list of human rights protected in Queensland:

• Recognition and equality before the law
• Right to life
• Protection from torture and cruel, inhuman or degrading treatment
• Freedom from forced work
• Freedom of movement
• Freedom of thought, conscience, religion and belief
• Freedom of expression
• Peaceful assembly and freedom of association
• Taking part in public life
• Property rights
• Privacy and reputation
• Protection of families and children
• Cultural rights generally
• Cultural rights of Aboriginal and Torres Strait Islander peoples
• Right to liberty and security of person
• Humane treatment when deprived of liberty
• Fair hearing
• Rights in criminal proceedings
• Children in the criminal process
• Right not to be tried or punished more than once
• Retrospective criminal laws
• Right to education
• Right to health services

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If you wish to make a complaint about a human rights issue in Queensland, please request a copy of PLS’ Human Rights and Discrimination Complaints factsheet.