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Has the Human Rights Act 2019 made a difference?

Scepticism about human rights within the Australian legal tradition is long-held and takes many forms. Concerns abound, for instance, about the functions placed upon the courts by human rights instruments and about increased litigiousness. Some question the need for a human rights statute given the abundance of common law and other statutory protections.

The Human Rights Act 2019 (Qld) (‘HRA’), largely based upon, but with some key differences from, the Charter of Human Rights and Responsibilities 2006 (Vic) (‘the Charter’), has sought to address such concerns by, amongst other things, requiring that human rights arguments piggy-back upon existing causes of action and expressly maintaining parliamentary sovereignty in its interpretation provision. As a result, anecdotally, many lawyers query whether the Act will make any difference at all.

In my view the HRA does make a difference albeit a more nuanced one than some human rights advocates might prefer. By requiring legislators, executive decision-makers, lawyers and judges to turn their minds to human rights in making and reviewing administrative decisions and in interpreting legislation, the HRA makes more visible, and more credible, the rights of those who are vulnerable to government action. There will, I think, be a gradual shift in legal culture, to one which notices and respects human rights.

Because tribunals routinely perform administrative tasks, their decisions will be significantly affected by s 58(1) of the Act, which requires any decision to be made only after “proper consideration” of relevant human rights, and importantly, to make a decision that is substantively compatible with human rights. Procedures adopted by courts that can be classified as administrative will be similarly affected by the HRA.

However, whether the HRA will substantively affect the outcome of judicial proceedings is yet to be seen in Queensland’s courts. The Victorian experience would suggest that often it does not, but sometimes it does.

For me, that the HRA will have some effect, a ‘hook’1 which is otherwise unavailable, for persons whose rights are either particularly vulnerable or historically ignored, is more than enough of a justification for the new framework. 

A review of Supreme Court cases where the HRA was applied in 2020 indicates there has been a careful but steady influence of the HRA upon the judicial function. Human rights arguments have been primarily made by intervenors under the HRA, the Attorney-General and at times also the Queensland Human Rights Commission (‘QHRC’).

Australian Institute for Progress Ltd v Electoral Commission of Queensland & Ors [2020] QSC 54 (Applegarth J)

Background

This case concerned a challenge to the interpretation of s 274 of the Electoral Act 1992 which defines “political donation” for the purposes of the prohibitions contained in s 275 of that Act  against political donations being made by or received from “prohibited donors”.

The protagonist, the AIP, was a Queensland “think tank” which proposed to engage in activities (education, advocacy etc.) aimed at promoting a particular political party from an “ideologically centre-right” perspective in the lead up to the recent State election. It received funding from prohibited donors (property developers).

The interpretative issue was whether s 274(1)(b) was to be read as limited to electoral expenditure on behalf of a party, member or candidate rather than, as its plain meaning seemed to suggest, applying to donations made to “another entity” such as the AIP which were gifted to enable them to incur electoral expenditure for the purposes of an election campaign.

Interpretation under the Human Rights Act

Applegarth J commenced with the conventional approach to statutory interpretation including by reference to the “principle of legality”,2 concluding that the construction urged by the AIP was not supported by the text or structure of the Act and would not achieve the Act’s evident purpose. Further, the principle of legality did not assist the AIP.3

The AIP disavowed reliance upon the HRA, presumably because the AIP was not an individual whose rights the HRA protects.4 Nevertheless, as Applegarth J found, the task of construction necessarily required effect to be given to s 48(1) HRA, which provides that all statutory provisions must, to the extent possible consistent with their purpose, be interpreted in a way that is compatible with human rights.5

Justice Applegarth noted the two aspects to s 48(1)’s command:6

  • Consistency with the statutory provision’s purpose; and
  • An interpretation that is compatible with human rights, which, by s 8 HRA means an interpretation that either does not limit a human right or, if it does, limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13.

It was clear that the prohibition in s 275 was intended to, and did, limit freedom of expression (s 21 HRA) and the right to take part in public life (s 23 HRA) by property developers.7 Accordingly, the question was whether it did so in a reasonable and demonstrably justifiable way as mentioned in s 13 HRA.

Section 13(1) provides that human rights may be subject “only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.”  Section 13(2) HRA sets out factors that “may” be relevant in deciding if a limit is reasonable and justifiable. Applegarth J considered each factor in turn, ultimately concluding the limit was reasonable and justified, indeed, his Honour found the prohibition to be consistent with a free and democratic society, and therefore the interpretation reached under standard approaches to construction was compatible with human rights.8 His Honour did not therefore need to consider s 48(2).

Commentary

There was no question in AIP v ECQ that s 275 limited human rights. This will often be the case. In such circumstances, the interpretative approach of Applegarth J, of ascertaining the meaning of the provision under traditional methods, consistent with the Act’s purpose, and then applying s 13(2) in order to answer the test for compatibility in s 13(1) adopts the interpretative approach summed up by Tate JA appearing as Solicitor-General in an early Charter case in Victoria, as answering the following question: “On the ordinary principles of statutory interpretation, does the statutory provision limit a Charter right in a manner that is unjustifiable?”9 It is consistent with the approach of the majority of the Supreme Court of New Zealand under s 6 of the New Zealand Bill of Rights Act 199010 in R v Hansen11 and which found favour in the judgments of Gummow and Hayne JJ, and Bell J in the High Court, in Momcilovic v R.12 The approach may be described sequentially as:

  1. Determine the standard meaning of the legislative provision by using standard interpretative principles (including the principle of legality).
  2. Does the provision (in its standard meaning) limit any protected rights? (The principle of legality may have some work to do where the text, purpose and context of the provision leaves open a meaning that does not limit a human right.) If not, adopt the standard meaning, as it will be compatible.
  3. If so, are the limits demonstrably justified in accordance with s 13? If yes, then adopt the standard meaning.
  4. If not, is the provision capable of being interpreted in a more compatible way? If yes, adopt the most compatible interpretation (s 48(2)).
  5. If not, adopt the standard meaning and consider a declaration of incompatibility (under s 53).

Ultimately, as McGrath J in Hansen said of the New Zealand equivalent, s 48(1) can be seen to make Queensland’s commitment to human rights:

“… part of the concept of purposive interpretation. To qualify as a meaning that can be given under [s 48(1)] what emerges must always be… a reasonably available meaning on that orthodox approach to interpretation. When a reasonably available meaning consistent with protected rights and freedoms emerges the court must prefer it to any inconsistent meaning.” 13

Attorney-General (Qld) v Sri & Ors [2020] QSC 246 (Applegarth J and Dalton J)

Background

In a relatively novel proceeding, the Attorney-General sought urgent injunctive relief at common law to prevent a planned protest on the Story Bridge. The protest organisers had not, rather unfortunately but not unlawfully, engaged in the usual processes under the Peaceful Assembly Act 1992 to obtain approval. The protest was billed as an indefinite ‘sit in’ that would continue to block all lanes of the Story Bridge until, essentially, the police arrested protestors.

Orders in respect of an initial protest were granted on an urgent ex parte basis by Applegarth J on 8 August 2020 and in relation to a postponed similar protest by Dalton J on 12 August 2020. Only the decision of Applegarth J is publicly available. Justice Applegarth considered the disruption to the traffic over the Story Bridge, in circumstances of an unlimited (in timeframe or extent of incursion) sit-in, with the additional features of no COVID-safe plan and inevitable physical interaction with police to be of significance to making the ex parte order.14 The COVID-related reasons had greater significance to Dalton J.

Applegarth J’s original orders contained an injunction against the planned sit-in, but also a broader prohibition against interfering with the traffic on the Story Bridge. This was set aside by his Honour on 10 August 2020. Before Dalton J, the Attorney-General initially sought broad orders in respect of future unknown events. Her Honour declined to grant the broadly described relief but made an injunction specifically tailored to the postponed planned sit-in.

Relevance of human rights

This was a judicial power being exercised at common law. Therefore, ss 48(1) and 58(1) had no relevance and the full extent of how human rights would be considered by courts was unclear.

Applegarth J recognised that the human rights involved – the democratic right to protest through peaceful assembly – had long been recognised at common law such that a court would pay great heed to them when being asked to stop or restrict them.15 Reference was made recent New South Wales decisions in that regard.16

As to the balancing of human rights under the HRA, his Honour stated that it is important to recognise that human rights are not absolute; that they are subject to reasonable and justifiable limitations in favour of other persons’ rights or demonstrated public good.17

The resolution of the application turned upon the specific facts, and the extent of the hazard and threat to the public of the particular proposed protest.18

Innes v Electoral Commission of Queensland & Anor [2020] QSC 293 (Ryan J)

Background

This was an application to quash the results of the Sunshine Coast Regional Council election by an unsuccessful mayoral candidate on the basis that the decision to hold the election during a pandemic had breached human rights.

In this case, Ryan J noted that the court did not have the benefit of a contradictor making submissions about human rights. Accordingly, the case was not an appropriate vehicle for reaching solid conclusions about the operation of the HRA.19 Unlike the other decisions discussed here, the QHRC was not an intervenor and only the Attorney-General made submissions about the HRA.

Relevance of human rights

Justice Ryan noted that human rights do not have free-standing operation, but are protected and promoted in the ways set out in the HRA.20 These were:

  • Under s 48, when interpreting legislation;
  • Under ss 58 and 59, when considering a claim about a breach of s 58(1) in the context of an independent cause of action in relation to the unlawfulness of the same act or decision; and
  • By direct application under s 5(2)(a).

As to s 48(1) HRA, her Honour found no ambiguity in the Act, adopting a standard approach to interpretation such that s 48 did not arise for consideration. In doing so, her Honour referred to the approach adopted in a QCAT decision21 which essentially adopted a reductionist view that might be taken from all of the judgments in the High Court in Momcilovic v R, that human rights statutes do not require courts to depart from established understandings of the limits of statutory interpretation.22

As to s 58 HRA, her Honour referred to Bell J’s decision in PJB v Melbourne Health23 describing the procedural limb of s 58 of “proper consideration” of human rights. It may be noted that more comprehensive discussion of that obligation can be found in Bare v Independent Broad-Based Anti-Corruption Commission24 and Castles v Secretary of the Department of Justice,25 Certain Children v Minister for Families and Children26 and Certain Children v Minister for Families and Children & Ors (No 2).27

In undertaking a review of compliance with the substantive component of s 58(1) by the Electoral Commission under s 59, Ryan J:28

  • First considered whether the decisions or actions by the ECQ were mandated by the statute – here certain decisions were required by law, and therefore s 58(1) was negated: see s 58(2) HRA;
  • Next identified the limits on human rights caused by the decisions or actions – here, her Honour indicated that limits could be found by either actual or potential interference or restriction to any extent; and
  • Lastly considered whether the limits were reasonably and demonstrably justifiable under s 13.

Ultimately, her Honour concluded the decisions around the holding of the election were compatible with human rights in the sense of placing only reasonable and justified limits upon human rights.29

As to s 5(2)(a) HRA, Ryan J adopted the intermediate functional approach adopted by courts in Victoria, where human rights will be relevant depending upon the function the court is undertaking. In doing so, her Honour expressly adopted the statement of Bell J in Kracke, that “requiring courts to consider rights which relate to the substance of the proceeding, as well as its process, enhances their legitimacy as institutions of justice with responsibility for interpreting and enforcing human rights.”30

Like Applegarth J in the common law context in Attorney-General v Sri, Ryan J found that the right to participation in public life (s 23) was a somewhat superfluous consideration as it was already incorporated in, and underpinned, the role of the Court of Disputed Returns as established by the Local Government Electoral Act 2011.31  Accordingly it was unnecessary to decide whether s 5(2)(a) required the direct application of s 23 HRA in the proceedings. Her Honour considered that right anyway because the task under the legislation at hand required the court to apply and preserve rights which were arguably broader than those expressed in the HRA.32

Other notable mentions

In a series of decisions, QCAT has accepted that s 58(1) of the HRA applies to its review decisions and its guardianship decisions.

The Land Court in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 held that its functions under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 to consider objections to mining leases and environmental authorities are subject to s 58(1) HRA.

In Re JMT [2020] QSC 72 and Johnson v Parole Board of Queensland [2020] QSC 108, the Supreme Court has noted the relevance of human rights to bail and parole decisions respectively.

The District Court has determined that the making of a judge alone trial order was not an administrative decision and therefore not subject to s 58(1). However, that the legislation governing the discretion would be read compatibly with human rights: R v Logan [2020] QDCPR 67, R v NGK [2020] QDCPR 77.

Finally, keep an eye out for the reserved decision in Owen-D’Arcy v CEO Queensland Corrective Services (BS 9472/20) (Martin J) which was a judicial review heard in October 2020 of a Maximum Security Order which had continued the segregation of a prisoner after 7 years in isolation. The court has been asked, inter alia, to judicially review asserted breaches of both the procedural and substantive limbs of s 58(1) HRA.


1 To adopt a word often used by the Hon. Michael Kirby AC CMG to demonstrate the need for a human rights instrument.
2 AIP v ECQ [2020] QSC 54 at [72]-[74].
3 Ibid, at [82], [93], [104]-[106], [110]-[111].
4 Section 11 HRA.
5 AIP v ECQ at [76].
6 Ibid, at [114]-[117].
7 [119]-[120].
8 [121]-[138].
9 Tate JA, “Statutory Interpretive Techniques under the Charter: Three stages of the Charter –  Has the original conception and early technique survived the twists of the High Court’s reasoning in Momcilovic?”  (Judicial College of Victoria (2014) 2: 43, 53.) Referring to her Honour’s submission as Solicitor General in RJE v Secretary to the Department of Justice [2008] VSCA 265. This was the approach ultimately taken by Nettle JA in that case. After Momcilovic, however, Victorian caselaw on the interpretative method has since largely followed the approach of the Court of Appeal in Momcilovic v R (2010) 25 VR 435, and by French CJ and Crennan and Kiefel JJ in the High Court in Momcilovic v R (2011) 245 CLR 1, without resolving whether the justification analysis contained in s 13 HRA / s 7(2) of the Charter is relevant to the interpretative process.
[10] Section 6 BORA: “Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.”
11 R v Hansen [2007] 3 NZLR 1 at [57]-[62] (Blanchard J), [88]-[92] (Tipping J), [191]-[192], [252] (McGrath J).
12 Momcilovic v R (High Court) at [168]-[171] (Gummow J, with whom Hayne J agreed, at [280]); [678], [681]-[684] (Bell J).
13 Hansen at [252].
14 AG v Sri [2020] QSC 246 at [39].
15 Ibid, at [3], [20]-[21]
16 Commissioner of Police v Bassi [2020] NSWSC 710 at [17], Commissioner of Police NSW v Gibson [2020] NSWSC 953 at [23]-[24].
17 AG v Sri at [27]-[29].
18 Ibid, at [5], [36].
19 Innes v ECQ [2020] QSC 293 at [202].
20 Ibid, at [197].
21 State of Queensland (Department of Housing and Public Works) v Tenant [2020] QCAT 144 at [176]-[187].
22 Innes v ECQ at [248]-[249].
23 PJB v Melbourne Health (Patrick’s case) (2011) VR 373.
24 Bare v ICAC (2009) 24 VR 415 at 260 [235].
25 Castles v Sec. Dept. Justice (2010) 28 VR 141 at [185]-[186], [221].
26 Certain Children v Minister for Families & Children [2016] VSC 796 at [190]-[194].
27 Certain Children v Minister for Families & Children (No. 2) (2017) 52 CR 441 at [174].
28 Innes v ECQ at [287], [289], [291]-[292].
29 Ibid, at [203], [301].
30 At [214]-[230].
31 At [234]-[241].
32 At [242].

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