Human rights at the forefront

On 31 October 2018, the Queensland Government introduced new human rights legislation into Parliament. Although not constituting a statutory bill of rights, the Human Rights Bill 2018 (Qld) (“the Bill“), if passed, will increase the focus of government, courts and tribunals on internationally recognised civil and political rights,[1] while providing modest new remedies for some transgressions.

The Bill is specific to the State of Queensland and differently formulated to (although broadly consistent with) human rights legislation in other Australian jurisdictions.[2]

Which human rights?

The Bill identifies 23 mainly civil and political rights for protection. These include equality before the law, freedom of thought, conscience, religion and belief, expression and association, the right of peaceful assembly, property rights, rights concerning privacy and reputation, right to a fair hearing, rights in criminal proceedings, rights to education and health services and cultural rights.

The rights go beyond broad statements; each is accompanied by more specific protections. For example, the rights in criminal proceedings list 11 separate minimum guarantees.[3] In practice, individual circumstances will give colour to the more general statements.

What’s changing?

The Bill makes it unlawful for public entities[4] to act or make a decision in a way that is not compatible with human rights or to fail to give proper consideration to human rights in making decisions.[5]

Importantly, this Bill does not provide a cause of action in itself. Attorney-General and Minister for Justice Hon. Yvette D’Ath noted in her explanatory speech “[t]here will be no stand-alone legal remedy for a contravention of this Bill. The Bill adopts an enforcement mechanism known as a piggyback cause of action”.[6] Simply put, an aggrieved person will only be entitled to seek relief or remedy on other grounds of unlawfulness (e.g. judicial review of a decision). If the primary cause of action can be established, any relief or remedy for the human rights violation (other than damages)[7] may be available, even if the claimant is unsuccessful on the other grounds. The Bill does not affect other statutory or common law rights to seek relief or remedy.

It is envisaged that the Bill “will provide an accessible, independent and appropriate avenue for members of the community to raise human rights concerns with public entities”.[8] through a clearly defined dispute resolution mechanism. In this regard, individuals will have the right to seek conciliation through the Queensland Human Rights Commissioner.[9]

The Bill also entrenches human rights considerations throughout the spectrum of the legal system, (at the legislative stage) by obliging Parliament to receive a statement of compatibility with human rights,[10] (at the interpretative stage) by requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights,[11] and (upon transgression) providing for how to resolve human rights complaints.[12]

Importantly, parliamentary sovereignty is maintained. The Bill ensures that Parliament can make an override declaration in exceptional circumstances.[13] Moreover, the Bill does not invalidate legislation that is expressly incompatible with identified human rights.[14]

The impact

Fundamentally, the Bill will directly impact the design and interpretation of legislation and, at the coalface, administrative decision making.

Despite affording limited remedies, the Bill will push human rights considerations to the forefront of public sector culture and influence the principled exercise of government power. This will extend from considering human rights impacts in the basic formulation of laws[15] to positively impacting recipients of government services through agency accountability and improved practises. Importantly, a human right may only be reasonably limited or impacted in circumstances where it is demonstrably justifiable.[16]

Although courts and tribunals will not be empowered to strike down laws for a breach of an identified human right, the Bill will increase judicial checks on the misuse of power through the mandatory interpretation of all statutory provisions in a way that is most compatible with the identified human rights. In this regard, it is also likely that the Bill will have practical operation beyond the activities of public entities, for example to the extent that legislation regulating private dealings may require a rights-affirming interpretation.

Key takeaway

Public decision making, already a nuanced art, will soon be refocussed to ensure that human rights receive due consideration in Queensland from the genesis of a public policy to the enforcement of rights.

[1] These rights find their foundation in the International Covenant on Civil and Political (ICCPR, cf. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx). Australia has been a signatory to the ICCPR for more than 4 decades.
[2] Charter of Human Rights and Responsibilities 2006 (Vic); Human Rights Act 2004 (ACT).
[3] Clause 32.
[4] “Public entities” are widely defined to include not only state and local government and agencies but also non-government entities delivering services to the public on behalf of the government or another public entity (such as a private company managing a prison or non-government organisations providing public housing, disability or health services).
[5] Clause 58.
[6] Attorney-General Hon. Yvette D’Ath, Explanatory Speech, 31 October 2018, Human Rights Bill, 3186.
[7] Clause 59(3).  The right to damages on other grounds is expressly preserved: clause 59(6).
[8] Attorney-General Hon. Yvette D’Ath, Explanatory Speech, 31 October 2018, Human Rights Bill, 3186.
[9] The Bill proposes that the Anti-Discrimination Commission of Queensland will be rebranded as the Queensland Human Rights Commission. Further, it is proposed that the Anti-Discrimination Commissioner, Scott McDougall, will become the Human Rights Commissioner.
[10] Clause 38.
[11] Clause 48.
[12] Part 4, Division 2.
[13] Clause 43.
[14] Although the Supreme Court may issue a declaration of incompatibility (clause 53), which, despite triggering Ministerial obligations to the Legislative Assembly, has no effect on the validity of the provision and does not create a cause of action (clause 54).
[15] This is not new in Queensland, see Legislative Standards Act 1992 (Qld).
[16] Clause 13(1).

Authored by:
Lionel Hogg, Partner
Paul Catchlove, Solicitor