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Article Australia: Queensland Enacts Historic Human Rights Legislation

(Mar. 6, 2019) On February 27, 2019, the Queensland Parliament passed the Human Rights Bill 2018 (Qld), making it the third jurisdiction in Australia to enshrine human rights protections in such legislation. (Human Rights Bill 2018 (Qld), Queensland Parliament website; Jack Maxwell, A Human Rights Act for Queensland, OXFORD HUMAN RIGHTS HUB (Nov. 26, 2018).) Australia does not have a federal human rights statute or constitutional bill of rights. (How Are Human Rights Protected in Australian Law?, AUSTRALIAN HUMAN RIGHTS COMMISSION (2006).)

The explanatory notes to the Bill state that

[i]n Queensland, some human rights are reflected in legislation: for example, the Anti-Discrimination Act 1991 prohibits discrimination on the basis of numerous grounds including race, sex, age and impairment. Other human rights, particularly civil and political rights, are recognised common law rights, including the right to liberty and security of the person, the right to a fair trial, freedom of peaceful assembly, freedom of association, and freedom of expression.

Social and economic rights (as reflected in the ICESCR [International Covenant on Economic, Social and Cultural Rights]) grew out of the recognition that access to certain basic conditions of living is necessary to live well and freely.

The aim of the Bill is to consolidate and establish statutory protections for certain human rights
recognised under international law including those drawn from the ICCPR [International Covenant on Civil and Political Rights], as well as the rights to health services and education drawn from the ICESCR, and property rights drawn from the UDHR [Universal Declaration of Human Rights]. (Queensland Parliament, Human Rights Bill 2018: Explanatory Notes 2 (2018).)

The Bill protects 23 human rights:

  • 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. (Press Release, Yvette D’Ath, Historic Day for Queenslanders as Human Rights Bill Passes (Feb. 27, 2019).)

The Bill provides that “[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.” (Human Rights Bill (Qld) cl 13(1).) It requires that a statement of compatibility with human rights accompany every new piece of legislation introduced into Parliament. (Id. cl 38.) Parliament may make an “override declaration,” declaring that an Act has effect despite being inconsistent with any of the rights or other provisions contained in the Bill. (Id. cl 43.)

Under the Bill, courts must interpret legislation compatibly with human rights, to the extent it is possible to do so consistent with their statutory purpose. (Id. cl 48.) If a statute cannot be interpreted compatibly with human rights, the Supreme Court may make a “declaration of incompatibility”; it will not be able to strike down legislation. (Id. cl 53.)

The Bill makes it unlawful for a public entity to act incompatibly with human rights, or to fail to give proper consideration to human rights that are relevant to a decision. (Id. cl  58.) However, individuals will not be able to bring a claim solely on the basis of a breach of this provision. Instead, a claim can only be brought in conjunction with another cause of action. (Id. cl 59(1) & (2).) Furthermore, a person “is not entitled to be awarded damages on the ground of unlawfulness arising under section 58.” (Id. cl 59(3).)

The Bill renames the current Anti-Discrimination Commission as the Queensland Human Rights Commission and establishes a nonjudicial complaints mechanism, which may include conciliation of a complaint. (Id. pt 4.) In addition to its complaints functions, the Commission will have the role of educating the public about human rights, among other functions. (Id. cl 61.)

The Bill must be independently reviewed as soon as practicable after July 1, 2023. (Id. cl 95.)

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