Case notes - human rights

Members of the Queensland Police Service challenged two directions made by the Police Commissioner that required police officers and staff members to receive doses and boosters of the COVID-19 vaccine by particular dates.

A similar challenge brought by Queensland Ambulance Service staff regarding a direction mandating vaccination made by the Director-General of Queensland Health was heard at the same time.

The court considered the rights to equality (s 15), life (s 16), freedom of thought, conscience, religion and belief (s 20), take part in public life (s 23), privacy (s 25), liberty and security (s 29) had not been limited by the directions in the ways argued by the applicants.

The court accepted that the applicants’ rights to not be subjected to medical treatment without the person’s full, free and informed consent (s 17(c)) had been limited by the directions. While consent is often accompanied by some form of pressure, the Court held that ‘where a person’s livelihood can be put at serious risk if consent is not given’ then that is sufficient to render consent not ‘full, free and informed’.

However, the limitation was demonstrably justified taking into account:

• the purpose of minimising the risks of transmission and employer responsibility for workplace health and safety and;
• the expert evidence that vaccinations had an effect in protecting against serious infection
• that alternatives to mandatory vaccination would not achieve the same purpose, and
• the knowledge about the virus, variants, virulence and transmissibility was limited and being added to on an almost daily basis.

The QPS directions were nevertheless declared unlawful because the Police Commissioner did not give proper consideration to human rights before issuing the direction. The Court was not satisfied the Police Commissioner had considered the human rights compatibility assessments prepared by staff prior to making the directions, and her oral evidence about her consideration of human rights at the time of making the directions was, at best, inconclusive.

The QAS direction was declared to have no effect because, on the evidence presented to the Court, the decision-maker had no power to issue the direction.

The court ordered that the Police Commissioner and the Director General of Queensland Health

• cannot take any steps to enforce the directions;
• cannot take disciplinary proceedings against the applicants based on the requirements of the directions.

Read the full text of the decision on the Supreme Court library website.

An allegation of harm was made against a residential care worker working in an accommodation facility for young people. A government department investigated and concluded that the allegation had been substantiated. The worker challenged the decision in court. The court agreed that the decision-maker’s access to private information about the worker had engaged the worker’s right to informational privacy. The court also agreed that the investigation and assessment process had compromised the worker’s mental health and had interfered with his mental integrity. However, the worker had not established that this interference had been unlawful. Further, the investigation and assessment was for the purpose of protecting children and their human rights. The information obtained was necessary for a proper investigation, and was treated confidentially and only used for the investigation and assessment. Accordingly, the interference was proportionate and was not an arbitrary interference with the worker’s privacy.

The court also confirmed that the task of proper consideration must be approached in a ‘common sense and practical manner’ and that public entities ‘are not expected to achieve the level of consideration that might be hoped for in a decision given by a judge’. It is not necessary for a decision maker to expressly relate their consideration of human rights to the specific sections of the Act.

A landlord applied to QCAT following the expiration of a fixed term tenancy agreement for a termination order and warrant of possession. QCAT applied Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252 in determining which human rights were relevant to the exercise of its discretion under s 5(2)(a) of the Human Rights Act.

Although other rights were considered, QCAT concluded that only freedom of movement was relevant to its functions, as it impacted upon the tenant’s freedom to choose where to live, and was therefore one of the factors QCAT took into account in exercising its discretion. QCAT held that limitation of the right was permissible having regard to the rights of the landlord, the contractual agreement between the parties, and giving effect to legislation regulating the end of fixed term residential tenancy agreements. The tribunal also took into account that the termination date ordered (almost 4 months after the end of the fixed term agreement) allowed the tenant to undergo and recover from surgery and have some time for relocation, while minimising potential detriment to the lessor.

This inquest investigated the deaths of three young Aboriginal women (Yvette Michelle Wilma Booth, Adele Estelle Sandy, Shakaya George) who lived in Doomadgee and died from rheumatic heart disease, or complications from rheumatic heart disease, within 12 months of each other. The issues for the coroner included the adequacy of health services and prevention strategies in Doomadgee for rheumatic heart disease.

The Coroner held that in holding an inquest and making findings and recommendations to prevent deaths in the future is an administrative function of the Court and therefore subject to the obligations on a public entity under section 58 of the Human Rights Act 2019 .

The Coroner also made observations regarding the cultural rights of Aboriginal people and Torres Strait Islander people, the right to access health services, and the rights of children in her findings and recommendations.

Full case note for Inquest into RHD Doomadgee Cluster (PDF File, 299.9 KB) .

A man applied to the Supreme Court for a review of two aspects of a direction issued to him by Queensland Corrective Services (QCS) pursuant to a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA).

The man had a history of sexual and violent offending. Psychiatric assessments of the man made in 2015 for the original DPSOA application suggested he represented a risk of future sexual reoffending. Based on these assessments, the Supreme Court released the man from prison subject to a 10 year supervision order, which required that he comply with every reasonable direction of a corrective services officer.

QCS staff became concerned about the man’s behaviour with respect to female NDIS workers funded to provide home-based services to the man, and in 2022 issued a direction requiring, among other things that he only have male NDIS support workers (Support Worker Direction) and that he obtain approval to have any person at his home, including family members (Visitor Direction). The man sought a review of these directions on several grounds, including that they were an unreasonable limitation on his human rights.

The court concluded the directions engaged and limited his right to freedom of association. The evidence provided by the respondent demonstrated that Support Workers Direction’s limitation on the man’s right was justified according to the criteria in s 13 of the HR Act, but the same evidence did not justify the limitation on rights in the Visitors Direction. A direction requiring the man to inform QCS about the prospect of the man associating with women might have been. However, the direction went further, requiring approval for any persons, including men within the man’s family, to be approved. The evidence did not justify such a broad direction, particularly as the 2015 supervision order was made because of concerns about the man committing sexual offences against women. The respondent did not demonstrate that the direction achieved the purpose of the direction, which was to ensure community safety. The court set aside the Visitors Direction on the additional basis that it was an invalid limitation on the man’s freedom of association.

The court suggested the directions may also have been unreasonable, and set them aside and remitted the decision back to QCS to consider according to law.

Full case note for Wallace v Tannock & Anor [2023] QSC 122 (PDF File, 273.2 KB)

A woman appealed the decision of the Mental Health Review Tribunal (MHRT) to approve 12 treatments of electroconvulsive therapy (ECT) for her. One question for the Court was whether the woman had capacity to consent to ECT, in accordance with the definition set out in the Mental Health Act 2016 (MH Act). This definition of capacity is distinct from the test for capacity that applies to involuntary treatment provided under a treatment authority.

The Court noted that the MH Act now rejected the best interest paradigm, and instead required consideration of the person’s views, wishes and preferences together with an ‘appropriateness’ element such as a ‘clinical merit’ test. The Court noted that the object and principles of the MH Act were compatible with the HR Act, despite being expressed in slightly different terms.

In setting out what was required to determine whether a person can understand the nature and effect of a decision relating to ECT, the court drew upon aspects of the Victorian case of PBU and NJE v Mental Health Tribunal (2018) 56 VR 141, including that to have capacity, it is not necessary for a person to give careful consideration to the advantages or disadvantages of treatment, or that the person makes a rational or balanced decision. It is enough, like most people, to be able to make and communicate a decision in broad terms as to the general nature and effect of treatment. A person’s insight into their illness is relevant to considering whether a person has the ability to understand the nature and effect of a decision relating to ECT treatment, but is not determinative. The question of capacity under the MH Act will be fact and context specific.

In this case, the Court determined the woman did not have capacity to consent to ECT, however refused to approve ECT on the basis that there remained alternatives to ECT that should be explored.

Read the decision in full  on the Queensland Judgments website.

Three groups applied for judicial review of a decision made by the Deputy Premier to ‘call-in’ a development application made by Wanless Recycling Park to establish a new resource and recovery and landfill facility west of Ipswich. The Deputy Premier may call-in a development application where a ‘state interest’ is involved. The call-in meant the decision on whether to approve the application would be made by the Deputy Premier, rather than through the usual development application process. The Deputy Premier had not yet decided whether to approve or reject the application itself.

One group of local residents alleged that the call-in decision was incompatible with their human rights under the Human Rights Act 2019 (HR Act). The Court considered the nature of their right to participate in public life, the right to property and the right to fair hearing in the planning process. The Court concluded that the Deputy Premier’s decision did not limit human rights, and even if it did, any limitation was reasonable and proportionate.

In reaching this conclusion, the Court considered the meaning of the term ‘without discrimination’ in the HR Act. The expression ‘discrimination’ is defined as including direct or indirect discrimination under the Anti-Discrimination Act 1991, which protects people on the basis of certain attribute such as age, impairment, political belief or activity, race, religious belief or religious activity, sex and sexuality. The residents argued that they were not given the same representation opportunities based on political association, meaning they were discriminated against because of their political belief or activity. However, the court found there was no evidence to support this argument.

The court found analogous grounds to those in the Anti-Discrimination Act 1991 would also be protected under the HR Act. However, there was nothing in the factual material to demonstrate that the residents had been discriminated against on a relevant analogous ground.

The Court also concluded the Deputy Premier had given proper consideration to human rights, and therefore had not contravened his obligations as a public entity. However, even if he had, a contravention of those obligations would be a non-jurisdictional error and so may not have assisted the applicants.

All other grounds of challenge including allegations of apprehended bias were also dismissed, and the applications refused.

Full case note for Austin BMI Pty Ltd v Deputy Premier [2023]  (PDF File, 269.8 KB)

The defendant refused to provide the passcode to his phone to police because it would offend his faith to expose photographs of his wife to male police officers. The Court accepted this was a ‘reasonable excuse’ in the circumstances, including having regard to police obligations to give proper consideration to, and act compatibility with human rights protected by the HR Act, including freedom of thought, conscience, religion and belief; cultural rights; and property rights.

Read the decision in full on the Queensland Judgments website.

In this case, the Land Court of Queensland recommended that the mining lease and environmental authority for a coal mine in Queensland’s Galilee Basin be refused.

The Court decided that the climate scenario consistent with a viable mine risked unacceptable climate change impacts to Queensland people and property, even taking into account the economic and social benefits of the Project.

Among several relevant factors, the Court took in into account human rights in the process of assessing where the public interest lies. The Court accepted the connection between the act of authorising the applications and the harm that would be caused by the emission of greenhouse gas when the mined coal is burnt, contributing to climate change.

The Court found that limits on the right to life, cultural rights of First Nations peoples, rights of children, right to property, right to privacy and home, and right to enjoy human rights equally caused by climate change were not demonstrably justified. Additionally, the court found that limits on the rights to property and privacy of landholders caused by the nuisance and environmental damage caused by the project were not justified.

While the Court’s decision is not binding on government, it is a significant one for how the Human Rights Act applies to resource projects and climate change, and discussion on the scope of specific rights.

Full case note for  Waratah Coal  Pty Ltd  v  Youth Verdict Ltd & Ors  (No 6) [2022] QLC 21 (PDF File, 235.7 KB) .

In this decision, the Queensland Civil and Administrative Tribunal (QCAT) considered the nature of its obligations under the Human Rights Act in making a decision about a complaint made under the Anti-Discrimination Act.

The tribunal found no question of statutory interpretation arose, and in deciding the complaint the tribunal is exercising judicial power.

Nonetheless, it was bound under s 5 of the Human Rights Act to apply the Act to the conduct of the proceedings. The complainant’s human rights affected by the proceedings were recognition and equality before the law (s15) and the right to a fair hearing (s31). The tribunal was satisfied that its obligations under section 5(2)(a) were met.

The Commission made submissions about how the Human Rights Act applies to the court’s discretion under s 5 of the Act (direct application). The Supreme Court made its decision on 10 November 2022. The decision confirms that a court is required to apply rights that relate to its functions. In this case, the Court concluded that the function of making a continuing detention order in lieu of a supervision order would involve the application of at least the right to liberty in s 29(1) and the right to protection against arbitrary detention in s 29(2). In contrast, the making of a supervision order in preference to a continuing detention order would involve at least the application of s 30 of the HR Act (right to humane treatment when deprived of liberty).

Full case note for A-G (Qld) v Grant  [2022] QSC 180 and A-G (Qld) v Grant (No 2) [2022] QSC 252 (PDF File, 282.3 KB)

The applicant/accused, Mr Wood, failed to appear before the District Court as required by his bail undertaking and his bail was revoked. He did not make a new application for bail, but instead applied for the District Court to declare under s 29(7) of the Human Rights Act (right to liberty and security) his detention was unlawful. He argued this would oblige the District Court to then order his release. Section 29(7) says:

A person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of the person’s detention, and the court must—

(a)     make a decision without delay; and

(b)     order the release of the person if it finds the detention is unlawful.

Mr Wood submitted that once he had made his application, the District Court was obliged to hear it ‘without delay’ which meant the court should have heard the application on the day it was made. Instead the court adjourned the application to the following day, during which the District Court agreed to the Mr Wood’s request to have his application referred to the Supreme Court as a question of law (under s 49 of the Human Rights Act).

The Supreme Court identified three primary questions arising from the referral, but found it needed to only answer one question, regarding whether the application purportedly made pursuant to s 29(7) of the Human Rights Act was appropriately brought in the District Court. The answer was that it was not appropriately brought.

The Supreme Court noted that the obligations in s 58 of the Human Rights Act (eg to act and make decisions compatibly with human rights, and give proper consideration to human rights) would only apply to courts and tribunals when exercising administrative power. Section 5 of the Human Rights Act should be considered when courts and tribunals exercise judicial power. Section 5 states that the Act applies to courts and tribunals when exercising functions under specific parts of the Act. The Court adopted the ‘intermediate approach’ of applying the equivalent section in the Victorian Charter, which means the Human Rights Act applies to courts and tribunals when they are applying or enforcing human rights that relate to the court or tribunal’s proceedings.

The application of the Human Rights Act in this way did not lead to a conclusion that s 29(7) provides a remedy by declaration. Case law in Queensland, the ACT and Victoria confirmed that the Human Rights Act does not provide independent remedies. Instead, where there are proceedings on foot seeking a remedy such as an application for a writ of habeas corpus, human rights must be applied. (The writ of habeas corpus demands that a person incarcerated be brought before the court to determine whether there is lawful authority to detain the person.)

When considering a writ of habeas corpus those rights would include, for example, the rights in s 29.

The Supreme Court concluded section 29(7) of the Act does not vest jurisdiction in the District Court to grant a declaration that a prisoner was being held in custody unlawfully. His human right, as identified by s 29(7) of the Act, was accommodated by the avenue available to him to apply for habeas corpus. The court further observed that such an application may have difficulties. The accused’s real remedy was therefore to apply for bail.

Wood v The King & Anor [2022] QSC 216 on Queensland Judgments website.

CH made an application for guardianship and administration in relation to BJ which was refused. Subsequently, BJ sought authorisation from QCAT to share information about the proceedings with the Disability Royal Commission and the media. CH asked for her identity to be withheld due to risks to her reputation. QCAT considered rights to equality, freedom of expression, and privacy and reputation of both parties, and concluded that the public interest and BJ’s interests outweighed the potential adverse impact on CH’s private interest, her employer’s interest, and other identified public interest concerns. QCAT authorised publication of the information.

BJ [2022] QCAT 326 on Queensland Judgments website.

An application was made by a mother to review a contact decision of the department. As the contact decision was designed to facilitate contact between the mother’s children, and did not involve the mother, the department sought to have the application dismissed on the basis the mother did not have standing. Applying the right to protection of families and children, QCAT concluded the mother was a person affected by any decision concerning contact with the child and therefore had standing.

SBN v Dept Children, Youth Justice and Multicultural Affairs [2022] QCAT 321 on Supreme Court Library Qld website.

This was a review of a decision to cancel the applicant’s blue card. While ultimately the decision was confirmed, QCAT accepted that proper consideration of human rights under the HR Act required QCAT to consider whether hardships caused by its decision affected human rights. A number of human rights were considered, acknowledging that the right to privacy and protection of families applied to relationships between foster parents and children, and that the right to work might be protected by other rights, such as the right to take part in public life, or the right to education.

LM v Director-General, Department of Justice and Attorney-General [2022] QCAT 333 on Queensland Judgments website.

In this preliminary decision, QCAT considered whether the applicants to a discrimination matter, who were all under 18 years old, needed a litigation guardian for the matter to proceed. QCAT accepted that a complainant did not need to be 18 years or older to make a valid complaint of discrimination on their own behalf, and this was an interpretation that was most compatible with human rights. Further, QCAT found that a person under 18 years old, provided they were ‘Gillick competent’, may pursue the matter without a litigation guardian. QCAT assessed the competency of each of the applicants and made directions that one of the applicants be appointed a litigation guardian. QCAT considered that by requiring a litigation guardian, the rights to equality, protection of families and children and fair hearing were limited. However, that limitation was considered justified because of its purpose to ensure a fair hearing for all parties based on reliable and informed instructions from a party competent to give instructions and the fair administration of justice.

BA, DC, FE v State of Qld [2022] QCAT 332 on the Queensland Judgments website.

Summary: Burleigh Town Village applied under the Anti-Discrimination Act 1991 for a tribunal exemption to allow a manufactured home park (the Park) to continue restricting accommodation and ownership of homes in the park to people aged of 50 years. Two previous exemptions had been granted for the Park, the last of which was granted before the commencement of the Human Rights Act 2019 (HR Act), which, the tribunal said, had considerable significance for the purposes of considering whether to grant a further exemption. The tribunal noted it had obligations under s 58 of the HR Act to act and make decisions in a way that is compatible with human rights and to give proper consideration to human rights in making its decision. The tribunal was also obliged to interpret statutory provisions compatibly with human rights (s 48).

The tribunal considered: the right to equality (s 15), freedom of association (s 22) and right to property (s 24).

The tribunal accepted that the application affects the rights to equality and to equal protection of the law without and against discrimination. Section 15(5) qualifies these rights by excluding ‘special measures’ taken for the purpose of assisting or advancing an identified disadvantaged and discriminated against group or person. The tribunal accepted that the onus lies with the applicant to establish that the activity to which the exemption is sought is a measure within section 15(5) or is justified under the proportionality test in section 13 of the HR Act, and that the standard of proof is the balance of probabilities.  The applicant in this case did not rely on section 15(5).

The tribunal accepted that it is a desirable policy outcome that affordable accommodation should be available to all individuals in Queensland. However, the tribunal found that placing an age restriction of 50 years and excluding those of any age below 50 from ownership and occupation of a residential complex is disproportionate to the purpose of providing affordable accommodation suitable for elderly retirees.

The purpose of providing an environment that appeals to older people can be achieved through alternate legitimate means such as providing facilities and activities that appeal to that age group, and targeted marketing.

The tribunal was not satisfied that an exemption would limit the right to freedom of association in any material sense, as owners are free to associate with whomever they wish, both inside and outside the Park.

The right to property in s 24(1) provides that all persons have the right to own property alone or in association with others. Section 24(2) states that a person must not be arbitrarily deprived of their property. The tribunal noted that the meaning of ‘arbitrary’ includes conduct that is capricious or disproportionate, or lack of justification and objective unreasonableness.

The tribunal accepted that each of the homes in the Park is the ‘property’ of each of the owners and their respective interests in their home include the ownership, use, enjoyment, and right to disposal of the property. The tribunal considered that the notion that a person must not be arbitrarily deprived of their property includes preventing a person from exercising their property rights in a way that is practical and effective.

The tribunal agreed with the Queensland Human Rights Commission’s submission that limiting the ability of homeowners to dispose of their homes is not proportionate to the objective of providing affordable housing in a community environment for older people.  Particularly in circumstances where the operator may refuse to consent to an assignment of property to a person who might be prepared to pay the proper market value for it because the person is of a different age or financial means, and therefore prevent the owner from obtaining the true value of the asset.

The tribunal was not persuaded that these limitations were reasonable and demonstrably justified in accordance with section 13 of the HR Act.

The exemption was refused.

Burleigh Town Village Pty Ltd (3) [2022] QCAT 285 on the Queensland Judgments website.

Summary: The State Coroner found that they were acting in an administrative capacity for the purpose of the Human Rights Act when making a decision regarding the investigation of a death in custody.

The Coroner had been asked to rule on the conduct of a police coronial investigation into the death of a woman, Selesa Tafaifa, at the Townsville Women’s Correctional Centre in November 2021. Most deaths of persons in the custody of Queensland Corrective Services (QCS) are investigated by the Queensland Police Service’s Corrective Services’ Investigation Unit (CSIU). The CSIU also has responsibility for investigating offences that occur within prisons.

At the time of her death, the CSIU was investing and prosecuting Selesa for criminal charges against QCS employees. Her family submitted that the conduct alleged in those charges was similar to the alleged circumstances preceding Selesa’s death, and that this created a conflict of interest for the CSIU.

In applying the Human Rights Act, and balancing relevant considerations, the Coroner concluded that the investigation of Selesa’s death should be finalised by another unit within the QPS other than the CSIU.

Full text of the Inquest into the death of Selesa Tafaifa on the Queensland Courts website.

Summary: One of the objections to the mining lease is the impact it would have on the human rights of Aboriginal people and Torres Strait Islander people. The objectors proposed the Court take on country evidence from four First Nations witnesses. In agreeing to make such an order, the Court acknowledged that it is unlawful for the Court to conduct a hearing in a way that was incompatible with human rights. Refusing the witnesses’ request would limit their ability to enjoy and maintain their cultural heritage, specifically about how traditional knowledge is imparted, as protected by s 28(2)(a) of the HR Act.

On country evidence also respected the collective nature of these rights and would ensure the Court received the best evidence from First Nations witnesses. The increased inconvenience and cost of litigation this would cause did not justify the limitation of these rights if the witnesses were confined to written statements.

Waratah Coal Pty Ltd v Youth Verdict & Ors [2022] QLC 4 on the Supreme Court Library Qld website.

Summary: The tribunal considered the HR Act in making declarations about a transfer of property from a man to his daughter in 2018. The man was 90 years of age at the time of the transfer.

The tribunal found several rights were relevant to its decision including the right to recognition as a person before the law (s 15), the right to a fair hearing (s 31), the right not to have privacy, home or correspondence arbitrarily interfered with (s 25), and the right to property (s 24). The tribunal took a broad interpretation of that right to include a right to dispose of property as an incident of ownership.

The tribunal considered if the evidence was sufficient to rebut the presumption of the man’s capacity to make the transfer under the Guardianship and Administration Act 2000. Further, as the man’s daughter had been previously appointed an attorney for financial matters, there was a presumption under the Powers of Attorney Act 1998 that the man was subject to undue influence in transferring the property to her.

The tribunal noted that it must interpret statutory provisions compatibly with human rights under s 48 of the HR Act. The tribunal adopted the approach of several judgements in the High Court decision of Momcilovic v R (2011) 245 CLR 1, concerning the equivalent Victorian legislation, finding s 48 applies when different constructions are open on the language of the provision being interpreted, having regard to the purpose of the provision.

In this case, as there was no ambiguity in the definition of capacity under the Guardianship and Administration Act, or regarding the meaning of undue influence under the Powers of Attorney Act, s 48 did not arise.

The tribunal found the extent of its other obligations under the HR Act depended on whether it was acting in an administrative capacity (s 58) and to what extent the Act applied directly to its functions (s 5(2)(a)).

While noting some uncertainty about how s 5 applied to its decision, the tribunal adopted the so-called ‘intermediate approach’, which means courts or tribunals are bound to apply the HR Act to the conduct of their own proceedings, where the nature of the function they are performing involves applying or enforcing human rights which relate to that function. The rights relevant to the tribunal’s functions were the right to equality and fair hearing, and the obligations arising from both were satisfied by the conduct of the proceeding, including that the man was represented.

The tribunal noted it is a court of record that exercises both judicial and administrative powers. It found that in making a declaration, it is exercising judicial power by enforcing existing legal rights as between the parties. Therefore, s 58 did not apply to its decision. In case it was wrong about that, the tribunal proceeded to apply sections 8 and 13 to consider if its decision was compatible with human rights, and found any limitation with the man’s rights was reasonable and justified.  In this case, the public interest in protecting persons from the actions of their attorneys, in taking substantial gifts from their principals where the principal and attorney are not on an equal footing, outweighed a person’s private interest (and concomitant human rights) in making a gift. Further, the tribunal suggested s 58(2) of the HR Act may apply, as it could not have reasonably acted differently or made a different decision because of the provisions of the Powers of Attorney Act.

The tribunal declared that the man lacked capacity to transfer property to his daughter in 2018. The tribunal also declared that the transfer was induced by the undue influence of his daughter.

Summary: The tribunal reviewed a decision of the Director-General (DJAG) to cancel a woman’s blue card as an exceptional case, after the woman was charged for breach of a domestic violence order. The charge was later dismissed.

As a public entity under the Human Rights Act 2019, the tribunal found it would unreasonably limit the woman’s right to fair hearing by placing any weight on charges that had been dismissed with no evidence to offer. There was also evidence that the charges were based on false allegations. Further, the offence for which the woman was charged was neither a serious or disqualifying offence under the WWC Act.

The tribunal found the evidence demonstrated that the woman had been a victim of a high level of violence, and there had been consequential injuries to the perpetrator of this violence. This did not mean that the woman was not appropriate person to work with children. The tribunal set aside the decision of the Director-General.

Summary: The Sunshine Coast Regional Council applied to the tribunal for an exemption under the Anti-Discrimination Act 1991 (AD Act) to allow the Council to restrict the grant of permits for the commercial activity of Indigenous tourism on Council controlled land, solely to Aboriginal and Torres Strait Islander people. The tribunal concluded that it was not necessary to grant an exemption as the existing exemption provided under s 104 of the AD Act for ‘welfare measures’ would apply.

Before reaching this conclusion, the tribunal considered if it could interpret s 104 compatibly with the right to equality of non-Indigenous people under the Human Rights Act 2019 (HR Act). It found previous factors set out by the tribunal in the case of Boeing for assessing exemption applications under the ADA largely fell within the scope of the factors set out in s 13 of the HRA for assessing if a limitation was reasonable and justified. The tribunal considered, but did not determine, if the criteria in s 13 may have replaced the Boeing criteria.

The tribunal concluded that the limitation of the human right to equal treatment under the law could be justified under s 13 of the HR Act. The proposed policy may also have satisfied the requirements of s 15(5) of the HR Act, as a ‘special measure’. The language of s 15(5) of the HR Act is similar to, but not the same as, s 104 of the AD Act.

However, the tribunal concluded the effect of s 104 of the AD Act applying, was that the proposed policy would not be unlawful discrimination under the AD Act. That in turn meant that the other requirements of the right to equality in the HR Act would not be contravened. Further, because ‘discrimination’ within the meaning of that term in the HR Act includes, but is not limited to, ‘discrimination’ under the AD Act, s 104 of the AD Act would also amount to a justification of the council in any complaint made against it under the HR Act.

Summary: The Land Court considered objections to the granting of mining leases to enable the expansion of an open-cut coal mine near Toowoomba.

The Land Court reconfirmed that in hearing mining objections, it is a public entity under the Human Rights Act 2019 (‘HR Act’). The original application was made in 2015, and after several appeals, was remitted back to the Land Court. The court considered, but did not determine, if this meant this most recent proceeding began before or after the commencement of the HR Act (1 January 2020). The court applied the HR Act, but noted that as its role was to make recommendations, if the question of compatibly with human rights was beyond the court’s jurisdiction, the responsible minister and department would also have to comply with their obligations as public entities under the HR Act.

As a public entity, the court was required to properly consider human rights and could not make a decision incompatibly with rights. The court applied the five-step process proposed by the Department of Environment and Science, a statutory party to the proceeding (see case below: Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2) ). The court found the proposed mine expansion may limit rights to property, privacy and the cultural rights of Aboriginal and Torres Strait Islander peoples. In balancing the relevant factors, the court concluded that any limitation was demonstrably justified. The court recommended the leases be granted, subject to conditions.

Summary: The tribunal granted an interim order for the appointment of a guardian of a woman with ‘severe dementia’, but dismissed an interim application for appointment of an administrator. It making its decision, the tribunal noted it must interpret the relevant statutory provisions compatibly with human rights. As a public entity, the tribunal was also required to consider the woman’s human rights in considering the appointment of an interim guardian, which included the rights to freedom of movement and privacy and reputation. As the tribunal was considering an interim order, the woman’s right to fair hearing was also limited. The tribunal concluded the limitation on rights was lawful under the Guardianship and Administration Act 2000.  The urgent nature of the application, and immediacy of the purpose to protect the woman from the risk of harm justified the limit on her right to a fair hearing on a short-term basis, and limits on rights of free movement and privacy until the matter was heard.

Summary: The Miami Retirement Village applied for a renewal of an exemption previously granted under s 113 of the Anti-Discrimination Act 1991 (ADA) for it to restrict accommodation and services in a residential complex at Miami to people aged over 50 years. The exemption was necessary as the village’s ownership and governance model predated and was outside the auspices of the Retirement Villages Act 1999.

When deciding exemption applications, the tribunal is acting in administrative capacity and is therefore a public entity under the Human Rights Act 2019 (HR Act). This required it to properly consider human rights and make decisions compatibly with human rights. The tribunal identified the right to equality (s 15) as potentially limited by its decision. In assessing if the limitation was proportionate, it noted that s 13 of the HR Act provided a guide as to those factors that may be relevant in deciding whether a limit on a right is reasonable and justifiable.

The tribunal concluded that a court or tribunal need not consider all the factors in s 13(2) in every case. However, the tribunal accepted that it will usually be necessary to consider all those factors and perhaps others in order to apply the proportionality test properly. In considering the tribunal’s approach to previous exemption applications, it determined the factors in s 13 should be considered along with the aims and objects of the ADA.

The tribunal found that several of these factors favoured granting the exemption including that there was no obvious less restrictive option (such as the village bringing itself under the Retirement Villages Act). However, in relation to whether the limitation helped to achieve the purpose, there was nothing to show that the village would be any less protected, positive, safe or friendly if people aged under 50 were permitted as residents.

Nonetheless, the tribunal determined that the most important factor when carrying out the balancing exercise required by s 13, and in exercising the discretion under the ADA, was the effect of ending the exemption. While longer term effects weighted against the exemption, as the tribunal could only make exemption orders effective now and for a maximum period of five years, it found it could only consider the short term effects.

The balancing exercise of factors therefore resulted in favour of renewing the exemption. Such a renewal was found to reasonably and justifiably limit the right to equality, and produced a result consistent with the aims and objects of the ADA.

Summary: A prisoner applied for judicial review of two related decisions to continue his separation from others, after being held in solitary confinement since 2013. The prisoner ‘piggy-backed’ alleged breaches of the respondent’s obligations under the Human Rights Act 2019 (HR Act). The HR Act proved central to the proceedings, as the only successful grounds for the applicant involved human rights.

The court found the right to humane treatment was limited by the decision and the respondents did not discharge the onus of demonstrating that limitation was reasonable. The decision also set out the requirements for a public entity to give ‘proper consideration’ to human rights when making decisions. As the public entity contravened its obligations under the HR Act, the court concluded the decisions were unlawful.

Full case note for Owen-Darcy v  Chief Executive, Qld Corrective Services [2021] QSC 273 (PDF File, 239.4 KB)

Summary: This was an appeal of a decision by the Mental Health Review Tribunal to remove a condition from the respondent’s forensic order that prevented him from having unsupervised contact with children. The Court recognised the regime established by the Mental Health Act is compatible with the Human Rights Act 2019, and that it was necessary for the Court to consider the compatibility of its decision with human rights. The Court also considered the interaction between human rights and the evaluation of ‘unacceptable risk’. The appeal was dismissed.

Full case note for A-G (Qld) v GLH [2021] QMHC 4

Summary: Fernwood operates a franchise, and itself runs a number of fitness clubs in Queensland for females only. It sought an exemption under the Anti-Discrimination Act 1991 to allow it to continue to provide its services to women only, to staff its centres with women only and to advertise those matters.

In considering the application, QCAT determined that it acts in an administrative capacity when considering an application for exemption under section 113 of the Anti-Discrimination Act 1991 .

In an earlier decision ( Re Ipswich City Council) the Queensland Industrial Relations Commission decided that it was acting in an administrative capacity when deciding an exemption application. In this decision, the QCAT agreed with that approach, and that it must apply section 58 of the Human Rights Act 2019 . This required QCAT to give proper consideration to human rights, and make a decision compatibly with human rights.

The tribunal found an exemption to exclude men from the fitness centres was a reasonable limitation on the right to equality in the Human Rights Act 2019, and the exemption was compatible with 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 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.

Full case note and submissions for A-G (Qld) 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 .

Full case note and submission for 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.