An Overview of the Human Rights Act 2019: The rights you probably didn’t know you have

On February 27, 2019 Queensland Parliament passed the Human Rights Bill 2018.  The Human Rights Bill 2018 introduces the Human Rights Act 2019 (the Act) into Queensland legislation.  Some provisions of the Act are due to operate from 1 July 2019 with the remaining provisions due to operate on 1 January 2020.

Queensland is the third state or territory to enact human rights legislation after Victoria and Australian Capital Territory. This monumental occasion affords greater protection for Queenslanders as a whole, but particularly certain disadvantaged Queenslanders who previously did not have access to much needed protection.

 

23 Fundamental Human Rights

The Bill will protect a total of 23 fundamental human rights with a view to include additional human rights in the future.

As at March 2019, the current protected rights are:

• Recognition and equality before the law;
• Right to life;
• Protection from torture and cruel, inhuman or degrading treatment;
• Freedom from forced work;
• Freedom of movement;
• Freedom of thought, conscience, religion and belief;
• Freedom of expression;
• Peaceful assembly and freedom of association;
• Taking part in public life;
• Property rights;
• Privacy and reputation;
• Protection of families and children;
• Cultural rights—generally;
• Cultural rights—Aboriginal people and Torres Strait Islanders;
• Right to liberty and security of person;
• Humane treatment when deprived of liberty;
• Fair hearing;
• Rights in criminal proceedings;
• Children in the criminal process;
• Right not to be tried or punished more than once;
• Retrospective criminal laws;
• Right to education; and
• Right to health services

What are Human Rights under the Act?

The Act recognises that human rights are not absolute and defines a human right by referring to the rights captured by part 2, division 2 and 3 of the Act. Namely, the 23 human rights mentioned above that apply to everyone in Queensland.

Section 11 confers the human rights in Queensland on all, and only, individuals in Queensland.  Importantly, the fundamental human rights under the Act are in addition to existing rights and freedoms permitted by law.

What is the role of Human Rights under the Act?

Prior to the enactment of the Act our fundamental human rights were never enshrined or amalgamated in Queensland legislation.  The legal implications of which meant that our human rights in Queensland only ever existed under sparse common law judgements and unconsolidated legislation  that were never truly embedded in the Queensland public sector.

The Act seeks to ensure that human rights are given proper consideration in the public sector and to deeply embed human rights in the culture of Queensland’s public sector.

How can my Human Rights be breached?

A primary objective noted under the Act, requires public entities to act and make decisions in a way compatible with human rights. Section 9 provides an exhaustive definition of a public entity. The meaning of compatible with human rights is defined under Section 8 as an act, decision or statutory provision that:

• does not limit a human right; or
• limits a human right only to the extent that is reasonable and demonstrably justifiable.

Therefore, a breach may have occurred if:

1. One or more of the human rights applies;
2. the entity falls within a scope of a public entity; and
3. the meaning of compatible with human rights is not satisfied.

Will my Human Rights ever be Limited?

Human rights may be limited where it is considered appropriate. Section 13 articulates that a human right may only 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 Act provides factors that may be relevant in determining whether a human right is reasonable and justifiable, however the factors will not be definitive on their own. It is likely that the courts will apply a test of proportionality to determine the extent that is reasonable and demonstrably justifiable.

What is the Process involved if my Human Right has been Breached?

The Anti-Discrimination Commission of Queensland will be renamed to Queensland Human Rights Commission (QHRC) to include further functions and a greater scope for human rights in Queensland. The QHRC is granted functions to resolve disputes where an individual’s human right has been breached.

You must first make a complaint to the relevant public entity, and if it cannot be resolved with that public entity, then a complaint can be made to the QHRC. The QHRC has various powers under the Act to handle a complaint and this will depend on the circumstances.

Most importantly, a complaint must be refused if the QHRC considers the complaint frivolous, trivial, vexatious, misconceived or lacking in substance. The QHRC may attempt to resolve the matter as it sees fit, including conducting a mandatory conciliation for all parties involved.

If QHRC are unable to resolve the complaint, the QHRC must prepare a report and provide the report to the complainant and respondent. Notably, the contents of that report are not admissible in a criminal, civil or administrative proceeding unless the complainant and respondent otherwise agree.

If QHRC are able to resolve the complaint then a notice must be provided to the complainant and respondent. The QHRC may publish information about a human rights complaint if the matter is resolved.

Can I sue for Loss or Damages if my Human Rights are breached?

Breaching a human right under the Act is not a recognised cause of action in itself. If a public entity has breached a human right in a manner that is not compatible with human rights, a recognised cause of action must exist to commence proceedings.

Therefore, a breach of a human right may only be a cause of action if it is in addition to a recognised cause of action permitted by law.

Will I be Awarded Damages if my Human Right is breached?

Monetary Damages do not apply to a breach of a human right under the Act. The applicant will be entitled to the relief or remedy that could be obtained from the recognised cause of action. However, if the recognised cause of action is unsuccessful then you may still be entitled to a remedy (except for damages as a remedy) for the breach of a human right.

What should we expect from the Human Rights Act?

It is clearly the intention of the Queensland Parliament to not only afford greater promotion and protection of human rights within Queensland but to also afford greater accountability for government and its related departments.

It is highly conceivable and foreseeable that most complainants whose human rights have been breached will have a recognised cause of action under relevant acts such as:

• Judicial Review Act 1991;
• Anti-Discrimination Act 2001;
• Crime and Corruption Act 2001
• Information Privacy Act 2009; and
• Right to Information Act 2009;

The practical effect of the Act will encourage discussions between the three arms of government, and ensure proper consideration is given to our human rights as Queenslanders to prevent a miscarriage of justice occurring due to the government and its related departments.

From the courts perspective, it is envisioned that the Act will open up extensive dialogue on these fundamental human rights that belong to all Queenslanders, and thereby providing considerable weight in a court proceeding for breaching a human right.

Need Legal Advice? Talk To Us

If you do require legal advice as you believe one or more of your fundamental human rights have been breached please call our office for a free 20 minute consultation or alternatively please seek competent legal advice.

Contact our criminal lawyers on (07) 3221 4999 in Brisbane or (07) 5532 3133 on the Gold Coast.

Disclaimer: This article is general in nature. It is not, and should not, be construed or relied upon as legal advice.