Human Rights Bill

In Queensland, some human rights (particularly civil and political rights) are part of the common law including the right to liberty and security of the person, the right to a fair trial, freedom of peaceful assembly, freedom of association, and freedom of expression. Other human rights are reflected in legislation: for example, the Anti-Discrimination Act 1991 prohibits discrimination on the basis of numerous grounds including race, sex, age and impairment. Some rights, which are internationally recognised, are not dealt with by the law.

Queensland was the first Australian State to introduce a human rights protection bill in 1959 by Premier Frank Nicklin, but it lapsed with the 1960 election. The Fitzgerald Report led to the establishment of an Electoral and Administrative Review Commission, which also recommended that Queensland adopt a bill of rights, but this was never acted upon.

In 2015, Parliament directed the Legal Affairs and Community Safety Committee (LACSC) to inquire into the appropriateness and desirability of a Human Rights Act for Queensland which finally reported on 30 June 2016. The LACSC was unable to agree on whether it would be appropriate and desirable to have a Human Rights Act in Queensland. The current government members supported a Human Rights Act (similar to the Victorian Charter, but with a right to education included) and the non-government members opposed the introduction of a Human Rights Act for Queensland.

The Bill

On 31 October 2018, the Hon. Yvette D’Ath MP, Attorney-General and Minister for Justice, introduced the Human Rights Bill 2018, fulfilling an election commitment.

The Bill follows the model of the 2 other Australian jurisdictions being Victoria and the Australian Capital Territory (ACT).[1] This is a ‘dialogue model’ of human rights being a middle ground between differing models around the world. There are constitutional (or entrenched) models: as represented by the United States Constitution and the representative (or parliamentary) models: as represented by the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). The Commonwealth Act involves an extension of existing parliamentary scrutiny mechanisms, with the establishment of a specific Human Rights Committee which has an explicit focus on international human rights.

The objectives of the Queensland Bill are to:

• establish and consolidate statutory protections for certain human rights;
• ensure that public functions are exercised in a way that is compatible with human rights;
• promote a dialogue about the nature, meaning and scope of human rights; and
• rename and empower the Anti-Discrimination Commission Queensland as the Queensland Human Rights Commission to:
  • provide a dispute resolution process for dealing with human rights complaints; and
  • promote an understanding, acceptance and public discussion of human rights.

The Bill protects 23 human rights drawn primarily from the International Covenant on Civil and Political Rights, but also includes 2 rights drawn from the International Covenant on Economic, Social and Cultural Rights and one from the Universal Declaration of Human Rights, being:

• recognition and equality before the law;
• right to life;
• protection from torture and cruel, inhuman or degrading treatment;
• freedom from forced work;
• freedom of movement;
• freedom of thought, conscience, religion and belief;
• freedom of expression;
• peaceful assembly and freedom of association;
• taking part in public life;
• property rights;
• privacy and reputation;
• protection of families and children;
• cultural rights—generally;
• cultural rights—aboriginal people and Torres Strait Islanders;
• right to liberty and security of person;
• humane treatment when deprived of liberty;
• fair hearing;
• rights in criminal proceedings;
• children in the criminal process;
• right not to be tried or punished more than once;
• retrospective criminal laws;
• right to education; and
• right to health services.

The Bill will be an ordinary Act of Parliament. That is, it will maintain the existing relationship between the Courts, the Parliament and the executive (government).

Parliament

Parliament remains sovereign, and may, if it wishes, intentionally pass legislation that is not compatible with human rights in the Bill. It is anticipated that this will be a rare occurrence.

Parliament will scrutinise all legislative proposals—bills and subordinate legislation—for compatibility with human rights. Future bills will be accompanied by a statement of compatibility with human rights.

The Courts cannot invalidate legislation that is not compatible with human rights. However, the Bill provides that the Supreme Court may make a declaration of incompatibility, meaning that the Court is of the opinion that a statutory provision cannot be interpreted in a way compatible with human rights.

The Bill requires Courts and tribunals to interpret all statutory provisions, to the extent possible consistent with their purpose, in a way that is compatible with human rights. If a statutory provision cannot be interpreted in a way that is compatible with human rights, the provision must to the extent possible consistent with its purpose be interpreted in a way that is most compatible with human rights.

The Executive

In general, State Government departments, agencies and their staff must act and make decisions in a way that is compatible with human rights. The bill provides, with some exceptions, that it is unlawful for a public entity 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.

Private sector bodies exercising government functions

The Bill also includes in its definition of ‘public entity’ non-government organisations, private companies and government owned corporations, that are engaged in various ways in delivering services to the public on behalf of the government or another public entity.

Examples include a private company managing a prison, or a non-government organisation providing a public housing service and are known as a ‘functional public entity’. The Bill also gives the example of a private school which is not to be considered a public entity ‘merely because it performs functions of a public nature in educating students because it is not doing so for the state’.

For the purposes of the Bill, registered providers of supports or a registered NDIS provider under the National Disability Insurance Scheme Act 2013 are specifically named as public entities when they are performing functions of a public nature in Queensland.

Other organisations, not specified above, will need to come within the definition of ‘Public entity‘, defined as:

• an entity, (which includes a person or unincorporated body);
• whose functions are of a public nature (see below for the definition); and
• only when it is performing such functions for the State or another public entity (whether by contract or otherwise).

The term ‘public nature’ is further defined. The legislation specifies some services that will be regarded as being of a ‘public nature”:

• emergency services;
• public health services;
• public disability services;
• public education including universities and vocational education;
• public transport; and
• a housing service by a funded provider.

Further, the Bill provides a non-exhaustive list of matters to assist in deciding whether an organisation has functions of a public nature, being whether the function is:

• conferred on the organisation by statute;
• connected to or generally identified with the functions of government;
• of a regulatory nature;
• publicly funded to perform the function; or
• that of a government owned corporation.

For whether they are non-profit organisations the critical factors will be funding from government and whether they are connected to or generally identified with the functions of government. It must be said that the definition is contested and Australian Courts have experienced difficulty in distinguishing public and private spheres. Most commentators are agreed that there is no clear test in the Bill or other areas of law from which a concept might be developed.

Cases from Victoria have found that a Medical Board, social housing provider, a private company managing recreation centres for a council, a non-profit that sub-leased a home from the Victorian Government for people with a disability are all involved in public nature functions.

For good measure, the Bill also makes staff members and executive officers of a public entity, also a public entity in their own right.

The Bill will not apply to all activities performed by a functional public entity, but only those of a ‘public nature’.

Limitation

Human rights protected by the Bill are not absolute and may be balanced against the rights of others and public policy issues of significant importance.

When non-profit organisations that are caught by the provisions have to make a decision about a client, stakeholder or a member of the public’s human rights, it will be important to follow a framework for deciding when and how a human right may be limited.

The Bill sets out the basic test for how a human right may be limited. It provides that a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

Because the justification must be ‘demonstrable’, the onus is on the organisation seeking to limit a human right to demonstrate that the limit is justified in the circumstances. This may involve written evidence of the decision and its process.

The Bill sets out a number of factors that may be relevant in deciding whether a limit is reasonable and justifiable. The factors are not exhaustive and include:

• the nature of the human right;
• nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;
• the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
• whether there are any less restrictive and reasonably available ways to achieve the purpose;
• the importance of the purpose of the limitation;
• the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right; and
• the balance between the matters mentioned. The more important the right and the greater the incursion on the right, the more important the purpose will need
• to be to justify the limitation.

Some organisations may decide to adopt these principles and processes generally whether they are caught by the Bill or not for reasons of consistency, ease of implementation by avoiding deciding whether the provisions apply in the particular instance and general equity.

Remedies

There is no stand-alone legal remedy for a contravention of this bill and there is no right to monetary damages on the basis of a breach of the Human Rights Bill alone.

Rather, a breach will create a new ground of unlawfulness—that is, a breach of the Human Rights Bill will be unlawful and can only be piggybacked on an existing right to claim for a remedy on another independent ground of unlawfulness. The remedy is the one the person would have been entitled to anyway on the basis of the existing claim.

The government expects that litigation over a breach will not be the norm and instead a new agency, the Queensland Human Rights Commission (QHRC) will conduct dispute resolution and conciliation.

Queensland Human Rights Commission

The Bill will rename the Anti-Discrimination Commission Queensland as the OHRC.

It is anticipated that the current Anti-Discrimination Commissioner, Scott McDougall, will become the Human Rights Commissioner.

The QHRC will make information about human rights available to the community as well as conduct education; deal with human rights complaints; provide as requested reviews of the effects of Acts and the common law on human rights; reviewing public entities’ policies, programs, procedures, practices and services in relation to their compatibility with human rights.

The Bill requires that the Act is reviewed twice, the first review will consider the operation of the Act up to 1 July 2023 and the second to 1 July 2027.

Next steps

The Bill was referred to the Legal Affairs and Community Safety Committee for detailed consideration and issued a call for public submissions by 26 November 2018.[2]

The committee is required to report by 4 February 2019.

The Minister has indicated that the provisions will fully commence on 1 January 2020, but the QHRC will be commissioned in mid-2019 to allow it to commence promotion of the Act and education.

Issues to consider

Organisations will be faced with the task of identifying when the Act may apply to activities that it is undertaking and alter their policies and practices accordingly. Identifying functions that have the requisite public nature may not be an easy task and the QHRC should provide some plain language guidance to non-profit organisations about the boundaries. Decision making in relation to human rights will first have to be identified and then a proper process adopted and documented supporting the decision. Some might consider extending the principles across the whole of their organisation to avoid inadvertent It may also be generally advantageous to good decision making.

Court litigation history in Victoria has not been extensive with about 100 cases a year in total and often the Act is only mentioned in passing.

The Queensland bill closely follows the Victorian Act and their formal guidance may provide some insights into how various issues will be regarded in Queensland.

There has been some inconsistent application and uncertainty between Victorian and ACT Courts about the correct way to of interpreting statutes with a human rights lens and this uncertainty may continue under the proposed Queensland legislation.

[1] The Charter of Human Rights and Responsibilities 2006 (Vic) (Victorian Charter) and the Human Rights Act 2004 (ACT) (ACT Human Rights Act).

[2] https://www.parliament.qld.gov.au/work-of-committees/committees/LACSC/inquiries/current-inquiries/HumanRights2018