Human Rights Bill 2018

The Human Rights Bill 2018 was introduced into Parliament on 31 October 2018. It follows the model of the Victorian Charter of Human Rights and Responsibilities as well as the ACT Human Rights Act, in adopting a dialogue model for human rights protection.

Under this model, the Parliament has a role in protecting human rights by scrutinising new legislation for compatibility with human rights and issuing statements of compatibility (clauses 38 and 39). The courts have an obligation to interpret legislation, so far as it is possible to do so, compatibly with human rights (clause 48). Where legislation cannot be interpreted compatibly, the Supreme Court may issue a declaration of incompatibility (clause 53). If legislation is held to be incompatible with human rights and a declaration is issued, the Minister responsible for administering the relevant legislation must prepare a response to the declaration and table the response in Parliament (clause 56). The executive is also required to act in a way that is compatible with human rights (clause 58). In this way, the Human Rights Bill requires the three branches of government to engage in a dialogue about human rights.

The Bill recognises a number of human rights (in Part 2), primarily drawn from the International Covenant on Civil and Political Rights. In addition, the Bill recognises rights to education and health services which are derived from the International Covenant on Economic, Social and Cultural Rights, as well as the distinct cultural rights of Indigenous Queenslanders, which draws upon the UN Declaration on the Rights of Indigenous Peoples.

Importantly, the Bill acknowledges that these human rights are not absolute. Clause 8 provides that an act, decision or statutory provision is ‘compatible with human rights’ if it does not limit a human right, or if it limits a human right in a way that is reasonable and justified under the proportionality test set out in clause 13(2). In broad terms, clause 13(2) has the effect that legislative and executive acts may limit human rights if they do so for a compelling reason, and the benefit of achieving that compelling reason outweighs the negative impact on the human right.

The most relevant impacts for government departments  will be the new requirements to:

• interpret legislation in a way that is compatible with human rights; and,
• act or make decisions in a way that is compatible with human rights, and to consider human rights when making a decision.

There is no new cause of action for breaching human rights. However, if a person has other grounds on which to seek relief in relation to an act or decision of a public entity, they can add to that proceeding a claim that the public entity failed to act compatibly with, or to consider properly, human rights (clause 59). In Victoria, this is known as a ‘piggy-back’ cause of action.

The Human Rights Bill also provides a mechanism for conciliating human rights complaints. The Anti-Discrimination Commission Queensland will be rebranded as the Queensland Human Rights Commission and given the role of overseeing the conciliation process.