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The Human Rights Act (QLD)

Written by Cherisse Breese

Cherisse is a solicitor based at our Maroochydore office. In 2015, she graduated with a Bachelor of Laws from Charles Darwin University. Cherisse then completed her Graduate Diploma in Legal Practice through Queensland University of Technology in Brisbane. She was admitted to the Supreme Court of Queensland in 2016. Cherisse has strong interests in family law, domestic violence, criminal law, traffic law, property and succession.

The Queensland parliament passed the Human Rights Act 2019 on 27 February 2019. Queensland is only the third Australian jurisdiction to pass human rights legislation, along with Victoria and the ACT. Whilst Australia is a signatory to numerous international human rights treaties, these have not been incorporated into Australian law through federal legislation. The passage of human rights acts by individual states and territories is widely regarded as a positive development for the protection of human rights in this country.

Implementation

The Human Right Act’s implementation occurred in two stages. The first stage saw the Anti-Discrimination Commission of Queensland renamed the Queensland Human Rights Commission (QHRC). The functions of the QHRC started on 1 July 2019. The second stage commenced on 1 January 2020, when the process of taking complaints about human rights violations began.

The Act will be reviewed in 2024 and again in 2028.

What rights does the Human Rights Act protect?

Under section 11 of the Human Rights Act, all individuals (and only individuals) have human rights in Queensland. The Act aims to protect and promote human rights, to help build a culture in the Queensland public sector that respects and promotes human rights and to help promote a dialogue about the nature, meaning and scope of human rights.

The Human Rights Act provides protections for 23 human rights. They are:

  1. Right to recognition and equality before the law (s15)
  2. Right to Life (s16)
  3. Protection from torture and cruel, inhuman or degrading treatment (s17)
  4. Freedom from forced work (s18)
  5. Freedom of movement (s19)
  6. Freedom of thought, conscience, religion and belief (s20)
  7. Freedom of expression (s21)
  8. Right to peaceful assembly and freedom of association (s22)
  9. Right to take part in public life (s23)
  10. Property rights (s24)
  11. Right to privacy and reputation (s25)
  12. Right to protection of families and children (s26)
  13. Cultural rights—generally (s27)
  14. Cultural rights—Aboriginal peoples and Torres Strait Islander peoples (s28)
  15. Right to liberty and security of person (s29)
  16. Right to humane treatment when deprived of liberty (s30)
  17. Right to a fair hearing (s31)
  18. Rights in criminal proceedings (s32)
  19. Rights of children in the criminal process (s33)
  20. Right not to be tried or punished more than once (s34)
  21. Right not to be tried or punished under retrospective criminal laws (s35)
  22. Right to education (s36)
  23. Right to health services (s37)

How does the Act protect these rights?

The act requires new legislation to be scrutinised for compatibility with the human rights protections afforded by the act. It empowers the Queensland parliament to override legislation that is incompatible with the Human Rights Act.

The act also requires that all Queensland law be interpreted and applied in a way that is consistent with the Human Rights Act to the extent that this is possible.

Finally, the Act requires public entities to act in a way that is consistent with human rights.

Making a complaint

If an individual feels their human rights have been breached, then the first step is to make a complaint to the public entity responsible for the breach. That entity has 45 days to respond to the complaint.

If the complainant is not satisfied with the outcome, or there has been no response, then they can lodge a complaint to the Queensland Human Rights Commission (QHRC).

QHRC has the power to do any of the following things in response to a complaint:

  • Refuse to deal with the complaint if it is frivolous, trivial, vexatious, misconceived or lacking in substance, then the complaint must be refused (section 69);
  • Refuse to deal, continue to deal, or defer dealing with the complaint if there is a more appropriate course of action, if the complaint has already been appropriately dealt with by another entity, if the requirements to make the complaint have not been met, or if the complainant is not being co-operative (s70);
  • Refer the complaint to another entity, such as the Ombudsman, Crime and Corruption Commission, or NDIS commissioner with the complainant’s consent;
  • Deal with the complaint under the Anti-Discrimination Act if the commissioner considers this would be more appropriate;
  • Accept the complaint for resolution.

Time limit

There is a time limit with regards to complaints to QHRC. The complaint must be referred, or the complaint made within one year of the alleged breach. If the breach is outside the one-year time limit, the commissioner has the power to refuse to deal with the complaint.

Resolving a complaint

The QHRC may attempt to resolve the complaint through conciliation.

If the complaint is unable to be resolved through conciliation, a report will be made available to the complainant and respondent. This report is not admissible in other courts unless agreed by the parties.

The matters discussed during conciliation are confidential and are not admissible in any other legal proceeding. Participation in conciliation does not affect a person’s right to pursue other legal remedies in relation to the alleged breach of human rights.

Conclusion

The existence of a Human Rights Act will protect and promote human rights across Queensland. Human rights must now be considered when making decisions, passing new laws, and making and acting on decisions.

The Act is intended to promote recognition of human rights through all levels of public entities. It is hoped this will lead to an improvement in government policies, lawmaking, and inclusion across all areas. It will also encourage a dialogue about the importance of human rights.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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