QLD Human Rights Act to Fully Commence in January 2020

Tuesday 19 November 2019 @ 12.05 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

On 15 November, the remaining uncommenced provisions under the Human Rights Act 2019 (QLD) (‘the HR Act’) were commenced by proclamation. The provisions, primarily relating to obligations of public entities, are set to commence on 1 January 2020. The commencement indicates the final step in implementing the HR Act which was introduced last year, on 31 October 2018 by the Attorney-General and Minister for Justice, Hon Yvette D'Ath (‘the Minister’) and received assent on 7 March 2019. In a media release, the Minister stated “The primary aim of the legislation is to ensure that respect for human rights is embedded in the culture of the public sector, and that public functions are exercised in a principled way that is compatible with human rights.”

The HR Act implements various amendments across existing legislation to establish:

  1. The meaning of human rights and the rights protected under the HR Act.
  2. New procedures to encourage legislative compatibility with human rights.
  3. New procedures for justifying and discouraging statutory contraventions of human rights.
  4. The promotion of consideration towards human rights in statutory interpretation.
  5. Obligations of public entities concerning human rights.
  6. The Queensland Human Rights Commission and its relevant functions and powers.

Human Rights Protected under the Act

Divisions 2 and 3 in Part 2 of the HR Act indicate the human rights that are protected under the HR Act. Out of the 23 rights outlined in the Act, 20 directly correspond to articles from the International Covenant on Civil and Political Rights (ICCPR) which cover a wide range of rights including those pertaining to equality before the law, life, freedom of expression, peaceful assembly, privacy, protection of children and families, movement, legal proceedings, liberty and security of person. Clauses 36 and 37 protect the rights to education and health services respectively and were derived from the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to own property alone or in association with others and the right against arbitrary deprivation of property enclosed in clause 24 are derived from the Universal Declaration of Human Rights (UDHR). Furthermore, the preamble recognises the right to self-determination of the Aboriginal peoples and Torres Strait Islander peoples of Queensland.

Scrutiny of New Legislation

The HR Act requires that any member who proposes to introduce a Bill to the Legislative Assembly must prepare a statement of compatibility, regardless if the Bill is a private member’s or a government Bill. The statement must state the nature and extent, in the opinion of the member, to which the Bill is compatible with the human rights outlined in the HR Act. However, the compatibility statements are non-binding; the purpose of the compatibility statements is to elevate the consideration of human rights in legislative debate and promote parliamentary transparency and accountability.

Override Declarations

Section 13 of the Act states that human rights may be subject to limits, provided those limits are reasonable and justifiable in a free and democratic society. Part 3, Division 2 of the HR Act provides Parliament with the power to declare an “override declaration” which enables Parliament, in exceptional circumstances, to give an Act effect despite being incompatible with one or more of the listed human rights. The member who introduces the Bill is required to make a statement explaining the exceptional circumstances, describing the extent to which the HR Act does not apply to the Act and justifying the override declaration. Section 13 states that a justification of a limitation on a human right may consider factors such as the availability of less restrictive methods of achieving the Act’s purpose and requires a balance of the importance of the purpose of the limitation with the importance of preserving the human right. The HR Act provides a default expiry date of 5 years after the day of commencement for a provision of an Act containing an override declaration however allows Parliament to re-enact an override declaration at any time.

Interpretation of Laws

Part 3, Division 3 of the HR Act requires courts to interpret all statutory provisions in a way that is compatible with human rights to the extent possible that is consistent with the purpose of the relevant provisions. The HR Act is clear that courts cannot deviate from parliamentary intention and cannot invalidate legislation that is not compatible with human rights. Clause 53 enables the Supreme Court or the Court of Appeal to make a “declaration of incompatibility”, however such a declaration is non-binding and does not create legal rights or a cause of action, but instead initiates a procedure to bring the concern to the Attorney-General and Parliament. As the Explanatory Statement states “Parliament remains sovereign, and may, if it wishes, intentionally pass legislation that is not compatible with human rights in the Bill.” The HR Act introduces several mechanisms to address questions of law arising from applications of the HR Act including an avenue of referral to the Supreme Court and the ability for the Attorney-General and Queensland Human Rights Commission to intervene and be joined as a party to the proceedings.

Obligations on Public Entities

Part 3, Division 4 of the HR Act imposes procedural and substantial obligations on public entities which require them to give proper consideration to human rights in making a decision and to act in a way compatible with human rights. However public entities are exempt from these obligations where either:

  1. They could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.
  2. The body was established for a religious purpose and the act or decision was done or made in accordance with the doctrine of the religion concerned and was necessary to avoid offending the religious sensitivities of the people of the religion.

Section 9 of the HR Act defines a non-exhaustive list of public entities including government entities, public service employees, the Queensland Police Service, local government employees, ministers, members of a portfolio committee acting in an administrative capacity and any entity statutorily established as performing functions of a public nature. Further, section 60 enables an entity to voluntarily request to be subject to obligations which is intended to encourage a dialogue of corporate social responsibility by providing an avenue to build a human rights culture.

Available Remedies for Contravention of HR Act

Section 59 of the HR Act emphasises that that the HR Act creates a new ground of unlawfulness which is that a breach of the HR Act is unlawful. As stated in the Explanatory Speech, the HR Act adopts a “piggyback cause of action” mechanism where an applicant can only bring a claim of unlawfulness under the HR Act if they have a cause of action on another independent ground of unlawfulness such as the right to judicial review. Further, section 59(3) states that a person cannot claim monetary damages on the ground of unlawful contravention of the HR Act. While a claim on the ground of unlawfulness under the HR Act must be brought together with an independent cause of action, section 59(2) states that relief or remedy, provided it is not damages, is still available even if the person succeeds only on the human rights claim and not the other independent ground of unlawfulness.

Queensland Human Rights Commission

Finally, the HR Act establishes the Queensland Human Rights Commission (formerly the Anti-Discrimination Commission of Queensland) to deal with complaints concerning a public entity’s alleged contravention of the HR Act. The procedural options available to the Commission are outlined extensively under part 4 of the HR Act. The Commission may refer a complaint to other entities such as an ombudsman, the information commissioner and the Crime and Corruption Commission. Alternately, a commissioner may conduct an informal conciliation conference. If the matter remains unresolved, the commissioner must prepare a report on the substance and attempts at resolution of the complaint to the complainant and respondent and may choose to publish the report. The Commission also has functions other than dispute resolution including powers of review, an advisory role to the Attorney-General and a role as a promoter for education, understanding, discussion and acceptance of human rights.

 

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