Guidance on giving proper consideration to human rights
BZN v Chief Executive, the Department of Children, Youth Justice & Multicultural Affairs  QSC 266
In a recent Supreme Court ruling, Crowley J has clarified what is expected of public entitles to show that they have given proper consideration to human rights under the Human Rights Act 2019.
BZN was a social worker. A child in his care made an allegation that he had sexually assaulted the child. After an investigation by the department, the allegation of harm was found to be substantiated.
BZN sought judicial review of the decision to assess the allegation as substantiated, and ‘piggybacked’ human rights grounds onto the judicial review application. BZN claimed that the decision was unlawful under s 58 of the Human Rights Act as it was not compatible with his human rights (‘the substantive limb’) and that the decision-maker had failed to give proper consideration to his human rights (‘the procedural limb’).
In particular, BZN alleged that the decision was not compatible with his right to privacy and reputation in s 25 of the Human Rights Act and that proper consideration had not been given to these particular rights in making the decision.
His Honour dismissed the application for judicial review and found that BZN had not established a basis for a declaration of human rights unlawfulness under s 59 of the Human Rights Act.
Crowley J also clarified the standard that applies to public entities in discharging their obligations to give proper consideration to human rights under the procedural limb in s 58(1)(b) of the Human Rights Act.
His Honour emphasised that it is not necessary for a decision-maker to refer expressly to particular sections of the Human Rights Act. Rather, proper consideration involves understanding in general terms which rights may be affected by the decision, and whether and if so how, those rights will be interfered with.
His Honour was of the view that it would be sufficient, in most circumstances, for there to be some evidence that shows the decision-maker seriously turned their mind to the possible impact on a person’s human rights, the implications of the decision on that person, and any countervailing interests or obligations. Applying this realistic standard of proper consideration, his Honour found that the decision-maker had given proper consideration to BZN’s right to privacy and reputation. For this reason, the procedural limb in s 58(1)(b) had been complied with.
Read the judgment here.