The Human Rights Act 2019 – legal proceedings and human rights complaints

The Human Rights Act 2019 (HR Act) is due to commence on 1 January 2020, with the exception of the provisions rebranding the Anti-Discrimination Commission Queensland as the Queensland Human Rights Commission (QHRC), which commenced on 1 July 2019.

The HR Act is, in many respects, similar in nature to existing human rights legislation in Victoria and the Australian Capital Territory (ACT).  As such, in considering the implications of the HR Act, Crown Law has been guided by judicial consideration of the comparable legislation in that state and territory.

What this means for public entities

The HR Act sets out 23 human rights and it will be unlawful for a public entity to act or make a decision in a way that is not compatible with a protected human right, or in making a decision, to fail to give proper consideration to a human right relevant to the decision.

Time starts to run from 1 January 2020

The HR Act will not operate retrospectively, so the HR Act will not apply to proceedings commenced or concluded before 1 January 2020, or apply to an act or decision made by a public entity before 1 January 2020.

What options are available to an aggrieved individual?

An aggrieved individual may ‘piggy-back’ a claim onto another cause of action, or make a ‘stand-alone’ complaint to the QHRC.

‘Piggy-backing’ onto another cause of action

An aggrieved individual may bring proceedings in the courts, but only if it is ‘piggy-backed’ onto another cause of action. The HR Act does not identify what proceedings a claim can be tacked on to and theoretically a claim could be tacked on to a complaint of unlawful discrimination, adverse action or unfair dismissal. The case law from Victoria and ACT indicates that it is predominantly proceedings for judicial review on to which a complaint is ‘piggy-backed’.

Procedurally a complaint will be dealt with in the same way as the proceeding on to which it is ‘piggy-backed’. By way of example, if a claim is tacked on to a complaint of unlawful discrimination pursuant to the Anti-Discrimination Act 1991, if settlement is not reached in the QHRC, it will be referred to the Industrial Relations Commission or the Queensland Civil and Administrative Tribunal in the normal course.

Significantly, the aggrieved is not entitled to be awarded damages for a breach of the HR Act. However, other non-monetary remedies may be available if the claim of a breach of the HR Act succeeds. By way of example, in relation to a claim ‘piggy-backed’ on to a complaint of unlawful discrimination remedies such as an order requiring the respondent to make a public apology may be ordered.

Even if the main cause of action is unsuccessful, a person may obtain a non-monetary remedy on the ground of a breach of the HR Act. For example, if the complaint of unlawful discrimination is unsuccessful in the Industrial Relations Commission, or in the Queensland Civil and Administrative Tribunal, the Commission/Tribunal may order the respondent to make a public apology.

‘Stand-alone’ complaint to the QHRC

The other option available to an aggrieved person is to make a complaint to the QHRC. There are a number of requirements that need to be satisfied in order for an aggrieved person to successfully make a complaint. Significantly, an internal complaint must be made to the public entity about the alleged contravention which is the subject of the complaint, which needs to accord with the relevant public entity’s complaints procedure. At least 45 business days must have elapsed since the internal complaint was made before the complaint can be referred to the QHRC. Following the expiry of this 45 day period the person may only then refer the complaint to the QHRC if they have not received a response to the complaint or received a response which the person perceives to be an inadequate response.

There are a number of ways in which the Commission may resolve a complaint, the most likely of which is to hold a conciliation conference. The purpose of the conciliation conference is to resolve the complaint in a way that is informal and timely. The attendance of representatives at the conciliation conferences is only with the leave of the Commissioner, so it is quite possible that legal representation will not be permitted.

If the complaint is not resolved the outcomes for the complainant are limited. There is no provision in the HR Act for the complaint to be referred on to the Queensland Industrial Relations Commission or the Queensland Civil and Administrative Tribunal.

In circumstances where the complaint is not resolved, the Commissioner of the QHRC must prepare a report in which the Commissioner can make adverse comments in the report which may also be published. The respondent will, however, be given prior notice of the adverse comments and given an opportunity to make representations in response.

It is also important to note that aside from the compulsory report that is published by the Commissioner of the QHRC, there is also a potential for adverse comments to be made about an unresolved complaint in the annual report that the Commissioner provides to the Attorney-General each financial year, and which is tabled before the legislative assembly.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 18 December 2019

Author: Senior Principal Lawyer, Melinda Marincowitz