Quick questions on The Human Rights Act 2019 (Qld) and rights protection in Australia: QCE Legal Studies

Australia is a dualist common-law liberal democracy without a national bill or charter of rights. Rights are protected in patches by:

Enacted by the Queensland Parliament and commenced on 1 January 2020 (in full from 1 July 2020). Queensland was the third Australian jurisdiction to enact a human rights Act, following Victoria (2006) and the ACT (2004).

Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273. The Supreme Court of Queensland considered the operation of the Act in relation to conditions of solitary confinement (a maximum security order). The case established the proper approach to the proportionality test under s 13.

The Victorian and ACT Acts use the same dialogue model. The Human Rights Act 2019 (Qld) added the right to education (s 36) and the right to health services (s 37), drawing from the ICESCR. These are weaker formulations than the constitutional protections in jurisdictions with entrenched bills of rights (e.g. South Africa).

Strengths. Comprehensive list of rights. Public entities must consider rights in decision-making. Parliament must justify limits. Independent oversight by the QHRC.

23 human rights drawn principally from the ICCPR with some economic, social and cultural rights. The 23 are:

A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. The court considers the nature of the right, the purpose of the limit, the relationship between the limit and the purpose, the importance of the purpose, the importance of the right, and the existence of any less restrictive means.

A public entity must:

A member introducing a bill in the Legislative Assembly must prepare a statement of compatibility, identifying how the bill is or is not compatible with human rights.

Parliament may, in exceptional circumstances, declare that an Act has effect notwithstanding the Human Rights Act 2019 (Qld). The declaration sunsets after 5 years.

The Supreme Court of Queensland may declare a statutory provision incompatible with a human right. The declaration does not invalidate the law; it triggers a parliamentary response within 6 months (s 56).

The Queensland Human Rights Commission receives complaints, conducts conciliation, and issues advice. The Commission does not have power to make binding determinations. The complainant can apply to QCAT if not resolved.

The Supreme Court of Queensland considered the operation of the Act in relation to conditions of solitary confinement (a maximum security order). The case established the proper approach to the proportionality test under s 13.

Comprehensive list of rights. Public entities must consider rights in decision-making. Parliament must justify limits.

Dialogue model preserves parliamentary sovereignty. Override declarations available. The Act does not bind private actors.