the protection of human rights in Australia, including the Human Rights Act 2019 (Qld) and the dialogue model

What this dot point is asking

QCAA wants you to know how Australia protects human rights and to explain the Human Rights Act 2019 (Qld) in detail. Expect this as an IA3 essay or a major EA extended response.

The answer

How Australia protects human rights generally

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

• constitutional rights. Express rights (ss 41, 80, 116, 117, 51(xxxi)) and the implied freedom of political communication (Australian Capital Television v Commonwealth (1992) 177 CLR 106; Lange v ABC (1997) 189 CLR 520).
• common-law rights. Fair trial (Dietrich v The Queen (1992) 177 CLR 292), the rule of law, the privilege against self-incrimination, the principle of legality.
• statute. Commonwealth anti-discrimination Acts (the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth)); the Privacy Act 1988 (Cth); the Fair Work Act 2009 (Cth).
• state and territory human rights Acts. The Charter of Human Rights and Responsibilities Act 2006 (Vic), the Human Rights Act 2004 (ACT), and the Human Rights Act 2019 (Qld).

The Human Rights Act 2019 (Qld)

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).

Listed rights (Part 2). 23 human rights drawn principally from the ICCPR with some economic, social and cultural rights. The 23 are:

• recognition and equality before the law (s 15);
• right to life (s 16);
• protection from torture and cruel, inhuman or degrading treatment (s 17);
• freedom from forced work (s 18);
• freedom of movement (s 19);
• freedom of thought, conscience, religion and belief (s 20);
• freedom of expression (s 21);
• peaceful assembly and freedom of association (s 22);
• taking part in public life (s 23);
• property rights (s 24);
• privacy and reputation (s 25);
• protection of families and children (s 26);
• cultural rights generally (s 27);
• cultural rights of Aboriginal peoples and Torres Strait Islander peoples (s 28);
• right to liberty and security of person (s 29);
• humane treatment when deprived of liberty (s 30);
• fair hearing (s 31);
• rights in criminal proceedings (s 32);
• children in the criminal process (s 33);
• right not to be tried or punished more than once (s 34);
• retrospective criminal laws (s 35);
• right to education (s 36);
• right to health services (s 37).

Limitations clause (s 13). 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.

Obligations on public entities (s 58). A public entity must:

1. act or make a decision in a way that is compatible with human rights; and
2. give proper consideration to human rights relevant to the decision when making a decision.

"Public entity" is defined broadly to include government departments, local councils, Queensland Police Service, Queensland Corrective Services, and entities exercising public functions on behalf of the State.

Statements of compatibility (s 38)

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.

Override declarations (s 43)

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

Declarations of incompatibility (s 53)

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).

Complaints to the Queensland Human Rights Commission (Part 4)

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.

Examples of operation

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.

Innes v Electoral Commissioner of Queensland [2020] QSC 51 (decided shortly before the Act commenced in full) considered electoral matters and applied the Act's general principles.

The Queensland Human Rights Commission Annual Reports document complaint trends. Health, child protection and corrective services complaints feature prominently.

Comparison with other jurisdictions

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).

Effectiveness

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

Weaknesses. Dialogue model preserves parliamentary sovereignty. Override declarations available. The Act does not bind private actors. Resourcing of the QHRC has been criticised in successive annual reports.