Case notes - human rights

Summary: The Land Court is considering objections to an application by Waratah Coal for a mining lease and environmental authority to develop a coal mine. This decision arose from Waratah seeking further and better particulars of most of the grounds of objection, including some relevant to the application of the Human Rights Act 2019. The Department of Environment and Science, a statutory party to the proceeding, suggested there are five steps involved in applying human rights obligations placed on public entities under s 58 (including in this case the Land Court, which is acting in an administrative capacity):

1. Section 58(1)(a) – Engagement: whether the prospective decision is relevant to a human right (and which right).
2. Section 58(1)(a) – Limitation: if a right is relevant, is that right limited by the decision.
3. Section 13 – Justification: whether such limits as do exist are reasonable and can be demonstrably justified. There are two overlapping requirements within this step’: (i) legality and (ii) proportionality.
4. Section 58(1)(b) – Proper consideration: even if the limits be lawful and proportionate, the decision made must give proper consideration to the rights said to be engaged;
5. Section 58(2)- Inevitable infringement: this operates where the public entity could not reasonably act differently or make a different decision because of a statutory provision or under law.

Waratah’s application only requested further and better particulars in relation to engagement and limitation. The court said this may be because justification rests with the party asserting it, not the objectors, and that proper consideration and inevitable infringement relate to the court’s process of deliberation and raise questions of law. The court accepted that it was premature for the objectors to now fully articulate their human rights case by way of particulars.

Therefore, of the 170 further particulars sought by Waratah, the court found the objectors only had to respond to one, being an exhaustive list of the class of individuals whose rights may be limited by the applications being granted. For the remaining objections, with the primary concern of procedural fairness in undertaking an administrative function, the court found sufficient detail had been provided for Waratah to choose and brief its expert witnesses.

Summary: A woman and her children moved to a different location in an attempt to escape domestic violence. The woman applied to home school one of her children, who had been diagnosed with conditions affecting their ability to learn. To keep her family safe, she did not disclose details of her address. The Department refused the application because the approved form and governing Act required specific details of her address. The woman applied to the tribunal for a review of the decision.

The tribunal undertook a merits review of the decision, standing in the shoes of the decision-maker. As the tribunal is acting in an administrative capacity in its review jurisdiction, it is a public entity under the Human Rights Act 2019 . The tribunal must therefore act and make decisions compatibly with human rights. Several rights were identified by the tribunal.

The tribunal interpreted the governing Act as not requiring the woman to disclose her street number, street name and town name where it would risk the health and safety of her and her children, particularly as she had provided alternative contact details. In considering s 48 of the HR Act, the tribunal noted this interpretation was consistent with the overarching objects and guiding principles of the governing Act and compatible with human rights.

The tribunal set aside the Department’s decision and substituted it with a decision to grant home education registration.

Summary: The Ipswich City Council applied to the Queensland Industrial Relations Commission (QIRC) for an exemption under section 113 of the Anti-Discrimination Act 1991 to allow it to recruit female only waste truck drivers. The tribunal found that in determining whether or not to grant an exemption, it is acting in an administrative capacity, and must observe its obligations as a public entity under section 58 of the Human Rights Act 2019 .

The tribunal also found that the combined effect of section 5(2)(a) and section 48 of the Human Rights Act 2019 means that the QIRC must interpret section 113 of Anti-Discrimination Act 1991 compatibly with human rights as set out in s 48.

The tribunal considered how the right to equality under section 15 of the Human Rights Act 2019 applied to the application. The tribunal concluded that the exemption sought was a measure within the meaning of section 15(5), and therefore it was unnecessary to consider whether any limitation was reasonable and proportionate under section 13.

Having regard to the considerations traditionally taken into account in granting an exemption under section 113 of the Anti-Discrimination Act 1991 , the tribunal considered the exemption should be granted

Summary: A man, who was assigned female at birth, retained the physical capacity to conceive and give birth. After the birth of his child, he applied to review the decision of the Registrar, Births, Deaths and Marriages to register him as 'mother' instead of 'father'. The Tribunal found that the Births, Deaths and Marriages Registration Act 2003 required that the person who gave birth be recorded as mother . As the proceeding commenced in June 2019, the HR Act did not apply. Nonetheless, the Tribunal noted a decision involving the application of the UK Human Rights Act 1998 to the registration of a man as mother

Summary: The applicant was an unsuccessful candidate for mayor of the Sunshine Coast Regional Council. He sought to have the election result quashed and a new election ordered because of the COVID-19 pandemic. As part of his application, he piggy-backed ’ allegations that the holding of the election was a contravention of the obligations on the Electoral Commission of Queensland (ECQ) and the Chief Health Officer (CHO) under the Human Rights Act 2019 .

It should be noted that the court did not consider this an appropriate vehicle for reaching solid conclusions about the operation of the HR Act in Queensland . In its subsequent decision regarding costs ( Innes v Electoral Commission or Queensland & Anor (No. 3) [2020] QSC 320) the court reiterated that: ... because the applicant was in no position to assist in the interpretation of the Human Rights Act 2019 , I did not consider it appropriate to make any definitive statements about the application of the Act in Queensland. In that sense, there was little public interest benefit in my consideration of the interpretation of the Act .

The court concluded the election was conducted compatibly with human rights.

Summary: Objections to an application by Waratah Coal for a mining lease and environmental authority to develop a coal mine were referred to the Land Court. The Land Court’s role is to hear both sides and make a recommendation to the Minister and Chief Executive. Objectors had raised human rights and climate change issues, and Waratah applied to strike out the objections.

The Land Court accepted that it acts in an administrative capacity when considering and making recommendations, and determined that the recommendations are both a decision and an act under the Human Rights Act 2019 . The Land Court is therefore required to consider human rights, and must act and make decisions that are compatible with human rights. The Court decided that objectors are able to argue human rights issues, and Waratah’s application was rejected.

Summary: In responding to this discrimination complaint, Legal Aid Queensland made an application seeking suppression orders, citing the right to privacy and reputation of its employees named in the complaint.

The Commission found there was nothing unlawful or arbitrary about the complainant’s approach and therefore s 25 of the HR Act did not lead to a conclusion that the orders sought should be made. The Commission noted that it is a fundamental principle of justice that court proceedings are open. The application was dismissed.

Summary: The accused had been refused bail several times since 1 August 2018. This appeal arose from the decision of the Queensland Supreme Court to refuse his most recent application. In that decision, Flanagan J accepted that delay in proceeding to trial due to the impact upon jury trials of COVID-19 was a material change in circumstances which allowed the court to reconsider if bail should be granted. Nonetheless, Flanagan J found that if bail were granted there would be an unacceptable risk of the appellant failing to appear and surrender into custody. One of the grounds of the appeal was that Flanagan J erred in law by failing to recognise that the appellant’s ongoing detention was arbitrary and unlawful, citing the protection in the Human Rights Act to be tried without unreasonable delay. The Court of Appeal found that as the appellant did not make those submissions in the Trial Division and did not bring an application under s 29(7) of the Human Rights Act for a declaration or order regarding the unlawfulness of his detention, it was not necessary for the court to adjudicate upon this ground. An appeal against a refusal of bail was not the mechanism for advancing claims of that kind.

Summary: The Court focused on the relevant rights of protest organisers and the public under the Human Rights Act, including the rights to peaceful assembly and freedom of movement. The threat of COVID-19 transmission was also considered. Read our case note and submissions in Attorney-General for the State of Queensland v Sri & Ors [2020] QSC 246.

Summary: The Tribunal found it was acting in an administrative capacity in reviewing the decision to issue a negative notice for child-related employment (eg not issue a blue card) and so was a public entity under the Human Rights Act . This meant it had to consider the rights of the applicant and children in making its decision, as well as interpret the Working with Children (Risk Management and Screening) Act 2000 compatibly with human rights. The Tribunal found the applicant’s right not to be tried more than once was not limited as the purpose of its review and decision was not to impose additional punishment on the applicant for her past conduct, but rather to protect children. In weighing all relevant factors, the Tribunal set aside the Department’s decision, finding this was not an exceptional case to refuse a blue card.

Summary: The Tribunal applied the Human Rights Act to its interpretation of the criteria set out in s 221 of the Working with Children (Risk Management and Screening) Act 2000 regarding exceptional circumstances to refuse the issuing of a blue card. The Tribunal found HAP’s rights and the rights of children to recognition as people before the law entitled to equal protection without discrimination, freedom of expression and privacy and reputation were all engaged. The Tribunal found the rights of children were of particular concern and concluded the limits imposed by the issuing of a blue card would not be reasonable and justified in accordance with s 13 of the Human Rights Act . As such, the exceptional circumstances test was proved and the decision to refuse a blue card confirmed.

Summary: The Tribunal considered the application of section 48 of the Human Rights Act in interpreting provisions of the Anti-Discrimination Act 1991.

Summary: The Tribunal considered section 48 of the Human Rights Act in interpreting provisions of the Guardianship and Administration Act 2000 . In considering how to provide appropriate decision-making support to MJP by way of appointing decision-makers, the Tribunal found that his rights to property, freedom of movement and to choose where he lives, privacy and protection from being subject to medical treatment without consent were limited.

Summary: The Tribunal found that in hearing an application for guardianship and administration, it was subject to the Human Rights Act.

Summary: The Court considered that in application for a trial without a jury, the Court is acting in a judicial, not an administrative, capacity, and a decision under section 614 of the Criminal Code does not engage section 58 of the Human Rights Act . However, the Court considered that section 48 of the Human Rights Act requires the Court to interpret the requirement that a no jury trial be ‘in the interests of justice’ in a way compatibly with the defendant’s right to be tried without unreasonable delay.

Summary: The District Court considered application under the Criminal Code for a no jury trial order. The Court cited R v Logan to confirm that in making a no jury order, the Court is acting in a judicial, not an administrative capacity for the purposes of the Human Rights Act .

Summary: The Tribunal considered that in reviewing a decision to issue a negative notice for child-related employment (eg not issue a blue card), it was acting in an administrative capacity and was therefore a ‘public entity’ bound by the obligations under the Human Rights Act. The Tribunal also applied section 48 of the Human Rights Act in interpreting the relevant statutory provisions.

Summary: This matter concerned the application of section 48 of the Human Rights Act in interpreting provisions of the Electoral Act 1992 regarding political donations from prohibited donors. Read our case note and submission in Australian Institute for Progress Ltd v Electoral Commission of Queensland [2020] QSC 54.

Summary: The parties agreed that the Human Rights Act did not apply to the proceedings, as the proceedings started before the commencement of the Act.

Summary: The Tribunal considered the right to have decisions by a court or tribunal publicly available under the Human Rights Act in making a non-publication order under section 66 of the Queensland Civil and Administrative Tribunal Act 2009.

Summary: The tribunal considered that in reviewing the decision to issue a negative notice for child-related employment (eg not issue a blue card), it took on the role of the earlier decision maker. Adopting the decision of the Victorian Supreme Court in Patrick’s case, the tribunal found that it was acting in an administrative capacity when exercising this jurisdiction, and was therefore a ‘public entity’ bound by the Human Rights Act.

Summary: In consideration an application for eviction, the Tribunal found it was irrelevant that the tenant had commenced complaint proceedings under the Human Rights Act, and refused an adjournment to allow that process to be completed. The Tribunal considered the tenant’s right to freedom of movement, right to privacy, family, home and reputation and the right not to be treated in a cruel, inhuman or degrading way in being forcibly evicted.

58 (obligations on public entities);

29 (right to liberty and security of the person)

Summary: In considering a judicial review of a decision of the Parole Board, the Court noted that the right to liberty under the Human Rights Act 2019 was a relevant consideration for the Board in making decisions.

Summary: The Tribunal member found that when reviewing the respondent’s decision regarding screening for child-related employment (blue card), the Tribunal is acting in an administrative capacity, and therefore is a ‘public entity’ for the purposes of the Human Rights Act.

Summary: The Tribunal member found that when reviewing the respondent’s decision, it was acting in an administrative capacity, and therefore a public entity for the purposes of the Human Rights Act. The respondent’s decision was to remove two brothers from the foster care of the applicants, and cancel their certificate of approval as foster carers.

Summary: This matter concerned an application for bail in which the accused argued the COVID-19 pandemic was a relevant consideration. While arguments about the Human Rights Act had not been made by the parties, the Court suggested that the obligations placed on the executive by the Act may be relevant to future applications.

Summary: This matter concerned an application to vary contact arrangements between a child in the temporary care of the Chief Executive and the child’s former foster family. The Tribunal considered the right to family under the Human Rights Act, noting under international law it has been interpreted broadly.

Summary: In considering an application for a permanent stay of an indictment, the Court found that the delay in prosecution of the accused since 2002 breached the accused’s rights to a fair trial and trial without unreasonable delay.

Summary: In determining an application for eviction arising from a failure to pay rent, the Tribunal ruled that it must consider the tenant’s rights. In doing so, it found they were lawfully limited by the provisions of the Residential Tenancies and Rooming Accommodation Act 2008.