Human Rights Act passes Queensland Parliament

The Human Rights Act 2018, which will have far-reaching implications for public decision making in Queensland, passed Queensland Parliament on 27 February 2019.  What will it mean for public entities on commencement?

As noted in our Public Law Tracker in December 2018, the HRA will directly impact the design and interpretation of legislation and, at the coalface, administrative decision making through brakes on the exercise of government power.  At a basic level, the legislation is largely directed towards improving the delivery of public services by requiring government agencies to consider the human rights impact of the exercise of powers on the subjects of the power.  In particular, this will benefit vulnerable people.  However, the legislation is substantial and its effects potentially far-reaching.

This article, part of an ongoing series examining some implications of the HRA for government, looks at public entities covered by the Act.

Who it affects

Fundamentally, the legislation applies to public entities[1], which are widely defined to include:[2]

• State government departments
• local governments and councillors
• Ministers
• public service and local government employees
• Queensland Police Service
• an entity established under an Act when the entity is performing functions of a public nature (such as a government owned corporation)
• an entity whose functions include functions of a public nature when it is performing the functions for the State or a public entity (whether under contract or otherwise).

Regulations can extend the coverage to other entities.[3]  Non-covered entities (such as private companies adopting human rights principles as part of their corporate social responsibility charter) also can choose to be subject to the legislation by asking the Minister.[4]

The legislation also applies to courts and tribunals[5] and to Parliament[6].

How public entities are affected

With certain exceptions[7], it will be unlawful for public entities[8] –

• to act or make a decision in a way that is not compatible with human rights; or
• in making a decision, to fail to give proper consideration to a human right relevant to the decision.  Giving proper consideration includes to identify the human rights that may be affected by the decision and consider whether the decision would be compatible with human rights.[9]

An act or decision of a public entity is not invalid merely because the entity contravenes the section, but the affected person may seek relief (other than damages[10]) for a breach of the legislation if the person is otherwise entitled to seek any relief or remedy against the public entity (for example, judicial review on other grounds)[11], even if unsuccessful in obtaining that other relief.[12]  In practice, this piggyback cause of action is unlikely to present more than a formal impediment to human rights claims.

What this means

Only time will tell what this means for government.  In the short term, public decision making will need to refocus to ensure that human rights receive due consideration from the genesis of a public policy to the enforcement of rights.

The HRA lists 23 categories of human rights for protection.  Only a few of these rights – the due process rights that are the hallmark of administrative law (such as a fair hearing) or criminal law (rights in criminal proceedings) – will likely be reflexively dealt with by existing agency protocols.  As a starting point, agencies will need to understand the breadth of the rights protected, and consider the appropriateness of procedural responses in the context of the agencies’ responsibilities.  The procedural responses must also be nuanced, because human rights cannot be regarded collectively and individual circumstances will be the foundation of any decision (or complaint).

The HRA provides a mechanism for accessible and affordable complaints.[13]  Although the Commission has powers to refer matters to other agencies, most complaints which are accepted will be subject to a conciliation process.[14]  One can fairly confidently predict a significant appetite for complaints by aggrieved persons[15], particularly over time as the dialogue about human rights gains prominence.  Government agencies will need to be resourced appropriately to respond to this new form of review.[16]

In the longer term, the legislation is likely to have an increasing influence not only on government conduct but on the framing and enforcement of rights by the courts.

The overwhelming majority of the defined human rights are uncontroversial as far as they go, being hallmarks of a civil society.  The devil will be in the detail, because different rights can conflict, people asserting the same rights can have competing interests, the public interest and private interests are not always aligned, and so on.[17]  Vulnerable people will not be the only complainants and, as with other legal rights, some will be used to leverage collateral outcomes.

How the courts might approach the enforcement of the HRA will be of considerable interest over time.  As a cause of action[18], human rights complaints may be heard in a variety of contexts, from judicial review (where a right is reviewed against partly subjective criteria, subject to Wednesbury reasonableness) to resisting enforcement proceedings (where the right will be determined objectively by the courts).  The HRA is not a bill of rights and the human rights protected are not, generally speaking, common law rights.  The common law is largely based on the protection of freedoms rather than of rights. Further, common law principles of legality, which loosely mirror some of the statutory human rights, are interpretative presumptions rather than causes of action.  How the courts see the new human rights sitting within the hierarchy of recognised rights and principles will of considerable importance.

There is also the prospect of aspects of the legislation eventually being subject to constitutional challenge as impermissibly impairing the institutional integrity of the Supreme Court.[19]

Key takeaway

The Human Rights Act is well-intentioned legislation which undoubtedly will provide some protections to the particularly vulnerable and will change public sector culture and decision making practises.  Whether, despite its deliberate design limitations, the legislation ultimately has unintended consequences, becomes an uncontrollable beast or effectively cedes law making to the courts, as some critics suggest, can only be assessed over time.  In the meantime, agencies need to gear-up for comprehension and compliance.

[1] To the extent they have functions under part 3, division 4 – HRA s 5(2)(c).

[2] HRA s 9

[3] HRA s 9(1)(j)

[4] HRA s 60

[5] To the extent they have functions under part 2 and part 3, division 3 (for example, in the interpretation of laws and declarations of incompatibility) – HRA s 5(2)(a).

[6] To the extent it has functions under part 3, divisions 1, 2 and 3 (for example, in scrutinising legislation and making override declarations) – HRA s 5(2)(b).

[7] For example, if the entity could not reasonably have acted differently (such as giving effect to a statutory provision that is not compatible with human rights) (HRA s 58(2)) or an act or decision of a private nature (HRA s 58(3)).

[8] HRA s 58(1)

[9] HRA s 58(5)

[10] HRA s 59(3)

[11] HRA s 59(1)

[12] HRA s 59(2)

[13]Affected individuals can make complaints about alleged contraventions by public entities to the Human Rights Commissioner – HRA ss 63 and 64.  The Commissioner is the rebadged Anti-Discrimination Commissioner.  Note that human rights models in Victoria and ACT do not have this complaints mechanism.

[14] The Commissioner must refuse to deal with a human rights complaint if they consider the complaint is frivolous, trivial, vexatious, misconceived or lacking in substance – HRA s 69.

[15] Note that aggrieved persons can only be individuals, not corporations – se HRA s 11.

[16] In principle, responding to a human rights complaint should be little different to responding to complaints of (for example) unlawful discrimination.

[17] HRA s 13 sets out how human rights may be subject only to “reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom”, taking into account matters such as the nature of the right, the importance and legitimate purpose of the limitation, whether there are less restrictive and reasonably available ways to achieve the purpose and the balance of all of these matters.

[18] As opposed to declarations of incompatibility under HRA s 53.

[19] See Momcilovic v The Queen (2011) 245 CLR 1.