Celebrating 25 years: From Aspiration to Reality, An Australian Postscript

Claire E Brolan

Congratulations to Health and Human Rights on its 25^th anniversary from Queensland, Australia. In 2010 I read Jonathan Mann’s article, “Health and Human Rights: If Not Now, When?”, published in Health and Human Rights in 1997, and republished in the American Journal of Public Health in 2006.¹ Therein, Mann identified that in the public health and human rights fields, “we are creating, participating in, and witnessing an extraordinary moment in social history—the emergence of a health and human rights movement—at the intersection and at the time of two enormous paradigm shifts”. Mann highlighted that while the consequences of the merging of these disciplinary “tectonic plates” is “nothing short of revolutionary for public health practice”, he acknowledged that the outcome of this amalgamation will be challenging and “require innovation, experiment, and risk-taking”.

Mann’s 1997 article was of powerful resonance. When I first read it, I was a research assistant on an international health policy project at the School of Public Health at The University of Queensland, and an advocate at a small non-government organisation promoting the rights of persons from culturally and linguistically diverse backgrounds with disability. Many of the people I worked with (and their families) had experienced structural discrimination and injustices that tremendously impacted on their health and wellbeing, and ability to access and enjoy the underlying determinants of health. Through Mann’s article, I recognised that the health and human rights paradigm—and the human right to the enjoyment of the highest attainable standard of physical and mental health (right to health)—was the conceptual essence that underscored my professional approach to both my burgeoning public health academic work and complementary in-the-field disability rights advocacy practice. I realised I wasn’t alone.

After reading Mann’s article, I had a light bulb moment—obtain a PhD and become a right to health specialist. Indeed, I was so excited by this decision I sought to contact Mann and let him know of the powerful impression his words had on me. Sadly, I soon discovered Mann had tragically passed away in 1998. I found Daniel Tarantola, Sofia Gruskin, and colleagues’ moving tribute to him.² Clearly, Mann had profoundly impacted not only my life’s trajectory, but many others as well.

I indeed went on to pursue a PhD on the right to health in the context of SDG 3 formulation. I was concerned I might have to leave my home to secure gainful employment in the health and human rights field because Australia is the world’s only western liberal democracy without a Federal Human Rights Act, constitutional rights protections, bill of rights, or similar instrument. Although two of the eight Australian states and territories had introduced human rights instruments—the Australian Capital Territory and Victoria in 2004 and 2006 respectively—neither contained a right to health provision.

In 2010, I collaborated with academic colleagues at the Queensland Centre for Intellectual and Development Disability on a paper published in the Australian Journal of Human Rights, on the right to health of Australians with intellectual disability.³ Through this research I explored the right to health in the Australian context, and the obligations of the Federal and state/territory governments. I identified a dearth of peer-reviewed and grey literature studies critically examining the right to health’s application not only for Australians with disabilities, but for the wider Australian community. On the upside, I discovered the right to health is tremendously valued: of the 8,428 submissions to the National Human Rights Consultation Committee that led public consultations into Australia’s possible adoption of a Human Rights Act in 2009, the right to health was the human right most mentioned.

Six years later, when completing my PhD in 2016, the Queensland Parliament’s Legal Affairs and Community Safety Committee proceeded to coordinate an inquiry into the appropriateness and desirability of legislation for a Human Rights Act in Queensland. The Queensland Premier had stated that if the state were to introduce a Human Rights Act, it would likely follow Victoria’s Charter of Human Rights and Responsibilities (2006) which omitted the right to health. However, with a dedicated team of pro-bono university students, we analysed the inquiry’s 465 written submissions and seven public hearing transcripts and found that support for inclusion of a right to health’s featured prominently.⁴ The public hearing transcripts illuminated the importance Queenslanders attributed to instilling a human rights culture, and embedding health and human rights of and for diverse Indigenous peoples. The transcripts also revealed the struggles experienced by segments of the Queensland population (especially those living more remotely) to access appropriate, accessible, and quality health and related services that enhance the underlying determinants of health at both individual and community-levels.

Following the inquiry process, the Queensland Parliament assented to the introduction of a Human Rights Act (2019) on March 7 2019, with the new Act entering into force on January 1 2020 and importantly, it included the human right to health:

Section 37: Right to health services

(1) Every person has the right to access health services without discrimination.

(2) A person must not be refused emergency medical treatment that is immediately necessary to save the person’s life or to prevent serious impairment to the person.⁵

The Queensland Parliament adopted a distilled version of the Committee on Economic, Social and Cultural Rights’ right to health definition in its seminal General Comment No. 14, but in my view this should not detract from celebrating section 37’s inclusion. Queenslanders are grateful to the advocates who lobbied the political leaders to adopt the new Act. Their hard work was worth it as Queensland now leads the way in ensuring the Australian Government’s commitment to the right to health under multiple international human rights treaties are not just words on paper, but are now legal entitlements for 5 million Queenslanders.

The new Act will not be the panacea for all health and human rights injustices in the state and I take a cautious and measured approach to its implementation. However, I am hopeful that the Human Rights Act (2019) will facilitate a much needed intergenerational shift in Queensland’s political, legal, policy, and public service landscapes. This is especially needed at a systems level (across government departments and sectors both in and beyond health), to generate transparent and accountable health equity outcomes for some of Queensland’s most vulnerable, voiceless, invisible, and unwell populations—many of who are already experiencing the additional impacts of climate change. Australia is a high-income nation with an enviably good universal health care system, but this fact can also mask the unconscionable and often underhand health injustices, stigma, and discriminatory treatment experienced by some Australians. These include Indigenous Australians, people living in rural and remote locations, ageing persons, persons with disability, prisoners, individuals who present with stigmatised conditions, women (e.g., accessing sexual and reproductive health services), and LGBTQI Australians.

As the right to health progresses from aspiration to entitlement we are starting to consider monitoring and accountability measures, to support section 37’s implementation and the realisation of the new Act’s broader objectives:

Section 3: Main objects of Act

(a) to protect and promote human rights; and

(b) to help build a culture in the Queensland public sector that respects and promotes human rights; and

(c) to help promote a dialogue about the nature, meaning and scope of human rights.

Based on the Act’s aim to build a culture and dialogue around human rights, including health and human rights through section 37, my scholarship at the Centre for Policy Futures at The University of Queensland now focuses on:

• progressing state-wide right to health education and awareness raising workshops (and measuring their interventional impact);
• identifying and examining emergent right to health issues (i.e. identifying what are the issues, where in Queensland are these issues emerging and among which population segments and why, and how are these challenges being remedied through application of the Act); and
• building local research capacity to enhance evidence-based monitoring and review of section 37’s implementation.

The purpose of the workshops is to introduce the right to health to diverse Queenslanders and progress local thinking about its definition and ramifications, at both an individual and systems advocacy level. Designing these workshops has not been easy because workshop attendees are from different sectors and from different professional and disciplinary backgrounds, with little knowledge on human rights law, or public health. The workshops need language that builds bridges and cuts across disciplinary and sectoral divides, and leave participants understanding the importance of the right to health. Again, this approach is inspired by Mann’s words in the same paper:

But before exploring the future of health and human rights, it is important to consider ground rules for exploration, dialogue and common work in a complex field, under conditions of rapid and simultaneous changes. For while we seek to foster a community of belief, we must avoid creating, inadvertently, an oppressive orthodoxy (p.116)

Consequently, I begin by discussing the right’s history and value at the international level, and then unpack section 37(1)’s four elements (“everyone has the right” “to access” “health services” “without discrimination”) through a Queensland contextual lens. I am usually asked by workshop participants what is the difference between section 37 protections and the Australian Charter of HealthCare Rights. That’s easy—the content of the Charter is not expressly grounded in Australia’s commitments under international right to health law, and the Charter has no legal teeth or enforcement mechanisms. Workshop content will also be integrated into the curricula of local Masters of Public Health courses.

In the first 12 months of section 37 implementation, I intend to analyse the types, outcomes, and health system implications of right to health complaints that emerge for conciliation before the new Queensland Human Rights Commission. There is a need to build local right to health knowledge and ownership—this must include the diverse voices within Queensland’s very divergent communities—which will develop research collaborations and right to health participatory governance mechanisms as per General Comment No. 14.

As Mann warned in 1997, none of this is going to be easy. I have no doubt in coming years I will be revisiting Mann’s words for sage advice. Certainly, as 2020 unfolds I operate in the “very exciting and exhilarating times” to which Mann alluded to 1997. However, I still find it sad that I cannot call him.

Claire E Brolan, PhD, Centre for Policy Futures, The University of Queensland. Email: c.brolan@ uq.edu.au

References

1 J. Mann, (2006) Voices from the Past: Health and Human Rights: If Not Now, When? American Journal of Public Health 96(11): 1940-1943.

2 D. Tarantola, S. Gruskin, T. M. Brown, and E. Fee, (2006) Jonathan Mann: Founder of the Health and Human Rights Movement. American Journal of Public Health 96(11): 1942-1943.

3 C. E. Brolan, R. S. Ware, M. Taylor Gomez, and N. G. Lennox, (2011) The right to health of Australians with intellectual disability. Australian Journal of Human Rights 17(2):1-32.

4 C. E. Brolan, L. Herron, A. Carney, E. M. Fritz, J. James, and M. Margetts, (2018) A potential Human Rights Act in Queensland and inclusion of the right to health. Australian and New Zealand Journal of Public Health 42(2):120-126.

5 Human Rights Act (2019) (Queensland) Available: https://www.legislation.qld.gov.au/view/pdf/inforce/current/act-2019-005