Queensland Legislators and a Right to Property as a Human Right: The Functioning of the Concept of Human Dignity

Abstract

The work of Queensland’s legislators when evaluating property questions ought to be taken seriously. Issues of property raise important legal and political considerations for legislators who must enact legislation mediating individual rights and interests and collective considerations. New complexity and difficulty are brought by provisions in the Human Rights Act 2019 (Qld) requiring legislators to promote and protect ‘property rights’ (section 24) and to limit property rights only if a limit can be shown to be justified in a ‘free and democratic society based on human dignity, equality and freedom’ (section 13). From legal and social (including political) theory and High Court jurisprudence capable of giving meaning to practice, the thesis aims to provide Queensland legislators with a set of real-world normative tools to address contemporary and future complexity and difficulty. The theory includes JW Harris’s theory of property and justice, Jeremy Waldron’s democratic jurisprudence, Jürgen Habermas’s approach to human dignity and human rights, and the unified public law theory of Jacob Weinrib. The tools developed from theory equip legislators to evaluate property questions by way of rational discourse about the underlying human values property serves and the social relationships property shapes and reflects. When legislators mediate the interests of the diversity of people in the political community, the tools equip legislators to ensure a legislative response conforms with common law and statutory controls on legislative authority. One group of normative tools directed to the content of ‘property rules’ is selected and used via three stages of normative argument about the institutional, property and doctrinal dimensions of the Queensland property institution. A second group of normative tools addresses the legislative task: law-making in the circumstances of politics. For each group, it will emerge that legislators will optimise selection and use of real-world normative tools by attending to the concept of human dignity. Human dignity is invoked, but not defined in the Human Rights Act. The theories of Weinrib, Waldron and Habermas indicate that concept concerns the equal right of each person to freedom and that, as a universal concept, dignity is able to convert the individual/collective and moral/legal tension of property into a constructive dynamic. Citing theory about dignity, the Australian High Court has affirmed the normative functioning in State-enacted legislation of the concept of human dignity. Thus, as a pervasive constitutional value functioning as a normative concept, human dignity is capable of facilitating the accommodations constitutive of Queensland’s democratic legal order and its property institution.