Human Rights legislation passed

On 27 February 2019 the Queensland Parliament passed the Human Rights Bill without amendment with an expected commencement on 1 January 2020.

Many non-profit bodies receiving government funding for community services will come under the provisions for those funded services. Some community advocacy bodies will use the provisions to advocate for their clients, seeking access to government services and better treatment.

The Human Rights Act 2019 will protect 23 rights, including the right to privacy, cultural rights and for the first time in Australia, access to education and health services. The provisions are expected to commence on 1 January 2020. Human rights complaints can only be made from that date.

The Anti-Discrimination Commission Queensland will be renamed the Queensland Human Rights Commission, and continue its complaint handling, education, and training functions under the Anti-Discrimination Act. The Commission will also work to resolve human rights complaints, as well as provide information, education and training on the Human Rights Act.

We examined the Bill in our October 2018 Bulletin^[1] and now provide some more detail on the rights that are covered, when non-profit organisations will be subject to the provisions and a summary of what the act requires of decisions involving human rights.

Rights under the Act

The Act protects 23 human rights which are:

• 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 peoples and Torres Strait Islander peoples
• 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
• right to health services.

Each right is further explained in its own section of the Act and draws upon not only Australian case law, but international jurisprudence.

How will this be achieved?

The Act will require public entities — government departments, local councils, or other organisations providing functions of a public nature (non-profit and for-profit) — to make decisions and act compatibly with human rights. Parliament will consider human rights when passing new legislation or amending current laws through new embedded processes.

Does the Act include non-profit organisations?

Non-government organisations and private companies engaged in various ways in delivering services to the public on behalf of the government or another public entity (functional public entities) may attract the legislation.

Examples include a private company managing a prison, or a non-government organisation providing a public housing service.

The Act 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’.

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.

The Act will apply to only that of a ‘public nature’ that a functional public entity undertakes. The Act will not apply to a functional public entity that conducts other activities that are not funded or connected to the state. It is expected that many organisation will not make a distinction and apply the Act to all their activities on the grounds of its values and cost of differentiation of such decision making.

Making decisions and acting

Functional public entities are obliged to act and make decisions in a way that is “compatible with human rights”.

For many organisations that receive Queensland government funding, the Human Services Quality Standards already require that services are planned and delivered in a manner that respects and has regard for the individual’s human rights, in keeping with the United Nations Universal Declaration of Human Rights. The transition to the new regime may not be significantly different from current practices, but this should be established.

The Act makes it unlawful to act or make a decision in a way that is not compatible with human rights, (that is, limits a human right only to the extent that is reasonable and demonstrably justifiable) and this is known as a substantive provision.

Further, it is unlawful in making a decision, to fail to give proper consideration to the human right relevant to the decision and is known as a procedural provision.

By their very nature rights are not absolute and must be balanced against one another and against other competing private and public interests. This is not an easy task. The Act suggests that the following factors be considered to determine if a human right is limited only to the extent that is reasonable and demonstrably justifiable:

(a)        the nature of the human right;

(b)        the 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;

(c)        the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

(d)        whether there are any less restrictive and reasonably available ways to achieve the purpose;

(e)        the importance of the purpose of the limitation;

(f)         the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

(g)        the balance between the above matters

Example:

A physically disabled man living in a shared supported accommodation unit objected to his mail being opened by the workers at the unit on the basis that he was capable of opening his own mail and therefore his right to privacy was being breached. The rationale behind the unit’s policy was to ensure that any accounts needing payment could be taken care of. The advocate invoked the Charter, claiming that the right to privacy and reputation needed to be upheld. Consequently, the unit’s policy was changed and the man was allowed access to his own mail. ^[2]

These requirements do not apply if:

• the act or decision is of a private nature (i.e. not funded by the State);
• the functional public entity was required to act in a way demanded by another State or Commonwealth law; or
• a religious exemption applies.

Religious body exemption

These obligations do not apply to a body established for religious purposes if the act or decision is done or made in accordance with the doctrine of the religion concerned and is necessary to avoid offending the religious sensitivities of the people of the religion.

Clearly this would apply to what one would understand to be a church.

However, it may not apply to a body established by a church such as a community agency, aged care institution or hospital. The Victorian legislation provides a clear exemption for such church agencies, but these words have been omitted in the Queensland provisions.

However, the Victorian Courts have given the exemption a narrow meaning which may have prompted the Queensland Parliament not to include the exception.

In the Victorian case, a camp facility, Christian Youth Camps (CYC) was established by the Christian Brethren Trust, connected with the Christian Brethren Church. The Christian Brethren are opposed to homosexual activity as being against biblical teaching. A dispute arose about CYC’s decision not to hire a camp facility for the use of same sex attracted young people.  CYC was found not to be a religious body under the Victorian provisions.
 CYC, although it conducted Christian camps at its resort, also conducted secular school camps, corporate camps and other groups with no explicit religious connection and did not require any religious content or observance from these groups. The activities were not ancillary to, or supportive of, the entity’s religious purposes, but were the very purposes for which it existed.  Its purpose or activity was therefore not religious.

Remedies

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

Rather, a breach creates a ground of unlawfulness—that is, a breach of the Human Rights Act 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, Queensland as the Queensland Human Rights Commission (QHRC) will conduct dispute resolution and conciliation.

Where to now?

The Queensland Human Rights Commission is expected to provide educational materials and tools before the commencement of the Act in January 2020. The Victorian ^[3] and ACT ^[4] Commissions have extensive resources available for organisations which gives a good idea of implementation processes, but note that the Queensland provisions are different in some critical aspects.

[1] NFP Bulletin is available at https://paxton-hall.com.au/2018/11/human-rights-bill/

[2] Source: Disability Justice Advocacy: Submission for Review of the Victorian Charter of Human Rights and Responsibilities Act 2006.

[3] https://www.humanrightscommission.vic.gov.au

[4] https://hrc.act.gov.au