Under the Human Rights Act, public entities must act or make a decision in a way that is compatible with human rights and give proper consideration to relevant human rights when making decisions.
Section 58(1) of the Human Rights Act says it is unlawful for a public entity to:
- to act or make a decision in a way that is not compatible with human rights
- in making a decision, fail to give proper consideration to a human right relevant to the decision.
This section is the key operative provision of the Human Rights Act and places both substantive and procedural obligations on public entities.
The substantive obligation is that the action or decision of the public entity must not limit the human right or, if it does, must only do so to the extent that is reasonable and justified in accordance with the Human Rights Act.
As to the procedural requirement, giving proper consideration to a relevant human right would include identifying the human right that may be affected and considering whether the decision would be compatible with that human right. Public entities will be required to:
- understand in general terms the rights that may be relevant
- establish whether the rights will be interfered with by the decision
- seriously consider the possible impacts of the decision on a person’s human rights (including implications for the person)
- balance or weigh up the competing public and private interests as against protection of the human rights.
Failing to comply with s 58(1) of the Human Rights Act is not an offence and does not invalidate the act or decision. Instead, it gives a person affected by the action or decision the right to make a complaint under the Human Rights Act.
Examples of human rights engaged by public entity actions and decisions
The table below sets out some common interactions between individuals and public entities that may give right to a human rights breach, and human rights that may be engaged.
These examples have been adapted from Victorian and ACT cases under their respective human rights legislation. Each example provides the relevant law, process and policy as it would apply to a similar example in Queensland, as well as a summary of any relevant Queensland decisions.
|Case examples||Human rights that may be engaged during similar proceedings in Queensland based on cases from other jurisdictions:|
|A tenant and their children are evicted from public housing A tenant living in public housing with their children is alleged to have used the premises for illegal purposes. The public housing provider applies for an order that, if granted, will result in the eviction of the tenant and their children from the property. The order (a warrant of possession) is issued by the tribunal, and the tenant judicially reviews the decision in the Supreme Court. The tenant argues that the decision was incompatible and failed to consider their human rights. The Supreme Court considers the tenants human rights during the judicial review, and declared that the warrant of possession has no legal effect. The tenant was able to stay in the public housing property. Case reference: Burgess & Anor v Director of Housing & Anor  VSC 648 Queensland law: In Queensland, the Department of Housing and Public Works can apply to QCAT for a warrant of possession under the RTR Act. A QCAT decision may be judicially reviewed in the Supreme Court of Queensland in some circumstances.||The right to the protection of families and children (s 26 Human Rights Act) may be raised by the tenant, with the decision maker being required to take into account the tenants’ rights to protection of their family group, and the best interest of any child affected by the decision. The rights to privacy and reputation (s 25 Human Rights Act), which encompass a right to not have the person’s family and home unlawfully and arbitrarily interfered with. The right not to be treated in a cruel, inhuman or degrading way (s 17 Human Rights Act) by being evicted from the tenancy. The right to freedom of movement (s 19 Human Rights Act) including the right to choose where to live.|
|Children detained in an adult prison A riot at a youth detention facility causes extensive damage. There are not enough secure beds to house the young people in detention. A unit is established at a maximum-security adult prison. A number of children and young people are transferred to the unit. The conditions are harsh, austere and unsuitable for young people. Initially, all young people were placed in solitary confinement for several days. Young people were handcuffed when moved between cells and the exercise area. A group of children bring a judicial review, and also argue that the detention is unlawful under human rights law. In two decisions, the Supreme Court held that the orders establishing the unit and the transfer decisions were invalid, and the young people were ordered to be returned to a remand centre. Case references: Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children  VSC 796 (21 December 2016) Queensland law: In Queensland, judicial review applications are determined by the Supreme Court.||The right to protection from torture and cruel, inhuman and degrading treatment (s 17 Human Rights Act).The right for every child, without discrimination, to such protection as is in their best interests by reasons of being a child under the right to protection of families and children (s 26 Human Rights Act).The right of all persons deprived of liberty to be treated with humanity, and with respect for their inherent dignity under the right to humane treatment when deprived of liberty(s 30 Human Rights Act).Therights of children in the criminal process (s 33 Human Rights Act)which includes the right of children on remand to be segregated from detained adults.The rights in criminal proceedings (s 32 Human Rights Act) including the rights of children who are charged, including those held on remand, to a procedure that takes into account their age and the promotion of their rehabilitation.|
|Appeal against a negative notice for working with children[i] A person is convicted of a serious criminal offence that is not related to children. Ten years later, the person applies for a working with children check so that they can work as a bus driver. The application is refused on the grounds that the person is an unjustifiable risk. The applicant commences proceedings to review the decision. The Supreme Court held that the decision had not applied the ‘unjustifiable risk’ test correctly, and also that the tribunal had failed to consider the person’s human rights including the right to work, which is contained in international human rights law. Case reference: ZZ v Secretary, Department of Justice & anor  VSC 267 Queensland law: In Queensland, Blue Cards are regulated by Blue Card Services under the Working with Children (Risk Management and Screening) Act 2000 (Qld). A decision by Blue Card Services can be reviewed in QCAT. A QCAT decision may be judicially reviewed in the Supreme Court in some circumstances.||Theright to privacy and reputation (s 25 Human Rights Act), which includes the right not to have privacy, family, home or correspondence unlawfully or arbitrarily interfered with.The rights of children, including the right to protection of families and children (s 26 Human Rights Act) will also be engaged when interpreting the working with children legislation, which places a positive obligation on the relevant government department to protect children from harm. Another right that may be engaged where a court or tribunal refers to international law when interpreting the Working with Children (Risk Management and Screening) Act 2000 (Qld), based on the Victorian case is: the right to work as recognised in article 23(1) of the UDHR, which states that everyone has a right to work and article 6(1) of the ICESCR, which states that Australia, as a party, recognises the right to work and to safeguard this right.|
|Application for specialist medical treatment in detention A 45-year-old female prisoner is diagnosed with age-related infertility. The prisoner commenced IVF treatment before her incarceration. She is due to have her next birthday whilst in prison, and will no longer be eligible for IVF treatment after she turns 46. She requires a permit to leave prison and obtain IVF treatment. She makes an application for health leave. The request is refused. The prisoner applies to the Supreme Court for a judicial review of the decision. The Supreme Court finds that the prisoner has the right to continue to undergo IVF treatment, but that eligibility for permits will be considered on a visit-by-visit basis. Case reference: Castles v Secretary to the Department of Justice & Ors  VSC 310 (9 July 2010) Queensland law: In Queensland, health leave is regulated by the Corrective Services Act 2006 (Qld). A decision by Queensland Corrective Services may be judicially reviewed in the Supreme Court in some circumstances.||The rights of the prisoner to enjoy her human rights without discrimination, part of the right to recognition and equality before the law (s 15 Human Rights Act).The right to privacy (s 25 Human Rights Act) including the right not to have the person’s privacy or family unlawfully or arbitrarily interfered with. The rights of a detained person to be treated with humanity and respect for their inherent dignity under the right to humane treatment when deprived of liberty (s 30 Human Rights Act).|
|A review of an involuntary treatment order A person is subject to an involuntary treatment order. Under mental health legislation, the order must be reviewed by a mental health review board at least every 12 months after an initial review. The person’s treatment order has been in place for over two years without review. The person applies to the tribunal, arguing that the failure of the board to review the treatment order made them invalid and contravened their human rights. The tribunal held that the board had breached the person’s right to a fair hearing by failing to conduct reviews of the involuntary treatment order within a reasonable time. Case reference: Kracke v Mental Health Review Board  VCAT 646 (23 April 2009) Queensland law: Treatment authorities are made under the Mental Health Act 2016 (Qld) in Queensland, and can be reviewed by the Mental Health Review Tribunal.||The right to a fair hearing (s 31 Human Rights Act), which includes the right to have the proceeding decided by a competent, independent and impartial court or tribunal. The right to protection from torture and cruel, inhuman or degrading treatment (s 17 Human Rights Act), which includes a right not to be subject to medical treatment without the person’s informed consent. The right to privacy (s 25 Human Rights Act) including the right not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The right to liberty and security of the person (s 29 Human Rights Act), which encompasses a right to not have liberty interfered with except on lawful grounds. The right to freedom of movement (s 19 Human Rights Act) including the right to choose where to live and to move freely within Queensland.|
|Unlawful questioning by police Two young black African men were driving their car. Uniformed police stopped the vehicle randomly for a licence and registration check. Police then asked the driver for permission to search the vehicle. The passenger, who was upset at the delay, left the vehicle and walked along the footpath. The police repeatedly asked the passenger for his name and address. During the arrest, he allegedly assaulted the police officer and was charged with this and other street offences. When the passenger abusively refused, they were arrested for offensive language. During the summary trial, the passenger made an application to the magistrate to exclude the evidence obtained by police after the arrest, which they argued was unlawful under both statutory law and human rights law. The evidence was excluded and, on appeal to the Supreme Court, police were found to have breached the passenger’s human rights to movement and privacy. Case reference: Director of Public Prosecutions v Kaba  VSC 52 (18 December 2014) Queensland law: Police searches are governed by the Police Powers and Responsibilities Act 2000 (Qld) in Queensland and the admissibility of evidence may also require consideration of the Evidence Act 1977 (Qld).||The right to freedom of movement (s 19 Human Rights Act) to move freely within Queensland.In repeatedly asking the passenger for his name and address, police may have contravened the passengers right under the right to privacy (s 25 Human Rights Act) not to have his privacy interfered with. The right to liberty and security of the person (s 21 Human Rights Act)with reference to the passenger’s rights to exit the vehicle and walk along the public footpath.|
|The appointment of a guardian in QCAT An elderly person is hospitalised and then transferred to an interim aged-care facility. There is evidence that they lack capacity to make decisions, including about personal, health and financial matters. An application to QCAT is lodged by the hospital social worker at the hospital under the Guardianship and Administration Act 2000 (Qld) to appoint the Public Guardian and Public Trustee as guardian and administrator. QCAT considered the elderly person’s human rights, before being satisfied that the limits imposed on those rights were justified under the Human Rights Act. Case reference: The above example is based on the Queensland case of GCS  QCAT 206||The following human rights may be engaged during the QCAT proceedings: Property rights (s 24 Human Rights Act),which includes the right to own property and not be arbitrarily deprived of it. The right to freedom of movement (s 19 Human Rights Act) including the right to choose where to live and not be restricted in movement within QueenslandThe right to privacy (s 25 Human Rights Act) including the right not to have the elderly person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The right to protection from torture and cruel, inhuman or degrading treatment (s 17 Human Rights Act), which prohibits medical treatment without free and informed consent. The right to recognition and equality before the law (s 15 Human Rights Act),which includes the right to be recognised as a person before the law. The right to liberty and security of the person (s 29 Human Rights Act), which encompasses a right to not have liberty interfered with except on lawful grounds.|
|Self-represented litigant judicially reviews a decision not to allow appeal out of time A teacher is convicted of a number of criminal charges. The teacher abandoned their appeal when they are advised, incorrectly, that it would not affect their teaching career. Three years later, the teacher lodged an appeal against the criminal conviction. The teacher was self-represented and had no legal background. The judge dismissed the appeal without directing the teacher’s attention to the law governing leave to proceed with an out-of-time appeal. The teacher then sought a judicial review of the judge’s decision. Case reference: Tomasevic v Travaglini & Anor  VSC 337 (13 September 2007) Queensland law: In Queensland, a judicial review is determined by the Supreme Court.||The right to a fair hearing (s 31 Human Rights Act) will be relevant to the way the hearing is conducted, which may include providing assistance to a self-represented litigant. Therights in criminal proceedings (s 32 Human Rights Act) including the rights to minimum guarantees during the trial. The right to recognition and equality before the law (s 15 Human Rights Act) may also be raised, for example if the teacher had a disability that impacted on their ability to self-represent.|
|Child charged with a serious crime and is awaiting sentencing A 15-year-old child is charged with attempted murder and other serious charges. The child pleaded guilty and was being held on remand waiting for sentencing in the Supreme Court. An application is brought for directions about how the child should be held in custody, and how court appearances leading up to and including the sentence hearing should be conducted. The Supreme Court makes orders including that the child will not be handcuffed or detained with adult prisoners, that neither the judge nor barristers will wear robes or wigs and that the child can sit with their lawyer or with family or friends during proceedings. Case reference: DPP v SL  VSC 714 (26 November 2016) Queensland law: In Queensland, the application would be dealt with by the court hearing the sentencing proceedings.||The rights of children in the criminal process (s 23 Human Rights Act),which includes that accused children detained on remand should be segregated from adults. Therights in criminal proceedings (s 32 Human Rights Act) including the rights of a child charged with a criminal offence to a procedure that takes account of their age, and promotes rehabilitation.The right to recognition and equality before the law (s 15 Human Rights Act), which includes the right to equal treatment before the law. The right to the protection of families and children (s 26 Human Rights Act), which states that every child has the right, without discrimination, to such protection as is in their best interest and needed by them as a child.|