A Human Rights Act for Queensland

By William Oxby, Partner, Amy Carseldine, Senior Associate, and Louise Kruger, Senior Associate, Brisbane. 

The Human Rights Act – how will it work?

The Human Rights Act 2019 (Qld) (Human Rights Act) was assented to on 7 March 2019 and is expected to commence on 1 January 2020.

The Human Rights Act directly affects the law in Queensland in three ways:

New legislation

The Human Rights Act requires new bills introduced in the Legislative Assembly to have an accompanying statement of compatibility, that will state whether or not the Bill is compatible with human rights and the nature and extent of any incompatibility.

A portfolio committee will consider Bills and the accompanying statement of compatibility, and report back to the Legislative Assembly before the Bill is passed.

Interpretation of Laws

Judges will be required to interpret statutes in a way that is compatible with human rights. If this is not possible, the provision must be interpreted in the way that is most consistent with human rights.

When interpreting a statutory provision, the Human Rights Act allows judges to consider international law and judgments of domestic, foreign and international courts and tribunals.

Where a consistent interpretation is not possible, the Supreme Court may make a declaration of incompatibility.

A declaration of incompatibility brings the incompatible legislation to the attention of the Attorney-General and Parliament. However, it does not:

• affect the validity of the law
• impose binding obligations on the parties
• create legal rights or a civil cause of action.

Administrative decisions

The Human Rights Act requires public entities to make decisions in a way that is compatible with human rights, unless the public entity is bound to act or exercise its decision-making power in a particular way under a statutory provision.

However, a person will only be able to seek review of an administrative decision under the Human Rights Act where the person is already bringing an application for judicial review.

The Human Rights Act – in practice

Judicial review mitigation

A person affected by an administrative decision may be more likely to bring a judicial review application if they can also challenge the decision on a human rights ground. Although the Human Rights Act is not, on its own, a ground for judicial review, we may see an increase in judicial review applications because the applicant can now additionally argue a breach of human rights.

To mitigate against this increased risk, proponents can prepare a Human Rights Act compatibility statement as part of an application that will result in an administrative decision. This may assist the decision-maker to properly consider any human rights issues as part of the decision.

Indigenous engagement

In our experience, many companies will consider international treaties and declarations as well as domestic policy positions when considering their engagement with indigenous people. The Human Rights Act, and the protections it offers to indigenous people, should now form part of those considerations.

Enhanced protections

The Human Rights Act provides enhanced statutory protections for human rights, including the cultural rights of Aboriginal Peoples and Torres Strait Islander peoples.  The processes provided for in the Human Rights Act will influence the administrative decision making process and the development of State Government policy.

Interpretation

By allowing judges to consider international law and judgments of domestic, foreign and international courts and tribunals when interpreting statutory provision, new legal concepts may be introduced into Queensland law.