The Human Rights Act – one year on
The Human Rights Act 2019 (Act) commenced from 1 January 2020. One year on, we are beginning to see:
With the Act is in its relative infancy, it remains challenging for all public sector lawyers to properly advise on compliance with the Act and how compatibility with the Act should be appropriately addressed in the decision-making and actions of public entities.
While reference can be made to other jurisdictions both in Australia and internationally to aid in the interpretation of the Act (see section 48(3) of the Act), as public sector lawyers in Queensland, it is welcoming to see Queensland jurisprudence being developed in this area.
In this update, we highlight a few judgments from the last 12 months that assist in gaining a better understanding of how Queensland courts are approaching acts and making a decision to ensure that they are compatible with human rights.
1. Proportionality test for limiting human rights
A decision is compatible with human rights if the action taken limits human rights in a way that is reasonable and can be justified. That is public entities can limit a person’s human right(s) when the decision is considered, in proportion with other considerations, is lawful and considers less limiting alternatives.
The Supreme Court of Queensland, sitting as the Court of Disputed Returns in the Australian Institute for Progress Ltd v The Electoral Commission of Queensland  QSC 54 came to consider the application of this proportionality test for limiting human rights through consideration of a combination of:
Applegarth J in this case provided some useful guidance on how the proportionality test should be applied, namely:
In the context of this case, which concerned the application of section 48 of the Act in interpreting the provisions of the Electoral Act 1992 regarding political donations from “prohibited donors”, Applegarth J ultimately concluded the purpose of the limitations contained in the Electoral Act 1992 are consistent with this purpose of the Act as they seek to prevent corruption and undue influence in the government of Queensland. Applegarth J found that because the limitations on human rights was justifiable in accordance with section 13 of the Act and therefore the relevant provisions were “compatible with human rights” within the meaning of section 8 of the Act.
As such, Applegarth J found that the interpretation of the provisions of the Electoral Act 1992 were consistent with the purpose of the Act and that interpretation is compatible with human rights. The consideration of section 48(2) of the Act therefore did not arise in this case.
2. The “piggyback” provisions – section 58 and 59 of the Act
Section 58 and 59 of the Act are commonly referred to as the “piggyback” provisions. The Supreme Court of Queensland, again sitting as the Court of Disputed Returns in the case of Innes v Electoral Commission of Queensland & Anor (No 2)  QSC 293, came to consider these piggyback provisions. This case 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 respect of the “piggyback provisions”, Ryan J confirmed that:
"a person who claims that a public entity has breached section 58 can only bring legal proceedings to vindicate that claim by attaching it to an independent ground of unlawfulness (section 59(1)). A contravention of section 58 does not of itself give rise to any claim to relief or remedy. To achieve relief or remedy, the person alleging a breach of section 58 must also have a claim arising independently of the HR Act upon which the section 58 claim might “piggyback”.
Ryan J then outlined the following elements which an applicant must establish if he or she wishes to pursue a claim for unlawfulness:
3. Acts and decisions which require consideration of human rights
In the decision of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors  QLC 33, the Land Court (Court) came to consider what meaning should be given to an “act” and “making a decision” within the meaning of section 58(1) of the Act.
This case involved an application by Waratah Coal to strike out objections made by environmental groups, Youth Verdict and the Bimblebox Alliance, under the Mineral Resources Act 1989 (Qld) (MRA) or to obtain a declaration that the Court’s jurisdiction did not extend to the consideration of objections made under the MRA and the Environmental Protection Act 1994 (Qld) (EPA) to the extent that the objections relied upon the Act.
The objections of the environmental groups were based on the granting of a mining lease and environmental authority for a proposed coal mine in the Galilee Basin that was incompatible with human rights.
In this case, the Court held that its recommendations to the Minister in accordance with its functions under the MRA and the EPA amounted to both “making a decision” and an “act”, and therefore required the Court to comply with section 58(1) of the Act.
President Kingham found the Court was, in making its recommendations, required to comply with section 58(1) of the Act for the following reasons:
It is worth noting in this case that the question of the standing of the environmental groups was not decided by the Court. The Court considered that, because the environmental groups were not seeking a remedy at this stage of the proceedings, but rather only pressing the Court to take human rights into account, there was no need to determine the issue of the objectors standing.
The Court did, however, flag that a question of standing may be relevant at a later stage (e.g. if the environmental groups sought to challenge the ultimate recommendation of the Court to the Minister) where they would need to demonstrate that the “piggyback” provisions (discussed above) had been complied with.
4. The need to articulate a human rights case
On 8 February 2021, the Court delivered a further judgment, Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2)  QLC 4. This was on an application by Waratah Coal for further and better particulars of the objections made by the environmental groups to the mining lease and the environmental authority. In this case the Court was asked to consider the sufficiency of the response made by the environmental groups to the 170 requests for further and better particulars that were made by Waratah Coal.
The Department of Environment and Science intervened in this application noting that it will be better positioned to fulfil its role as the statutory party if the human rights objections made by the environmental groups are more fully articulated.
The Court here considered it had:
In these circumstances, it was important for the parties and the Court to identify the real issues raised by a ground for objection. The Court considered that providing particulars of a ground of objection may sharpen the issues but it was not the only process that was available to the parties and the Court to do so.
The Court ultimately found that it was premature in this case to require the environmental groups to fully articulate their human rights case which involves matters of policy, weight and law, bearing on potentially competing rights and interests, including the public interest.
The Court did, however, require that the environmental groups, in the interests of procedural fairness, and in the context of exercising their administrative functions, to provide (in addition to the responses that they had already provided to the requests for further and better particulars) an exhaustive list of classes or individuals whose rights may be limited.
5. Emerging issue – government decision-making and climate change
These Waratah Coal decisions flag the real possibility of challenges to decision-making on the basis that an “act” or “making a decision” is not compatible with the “climate change” rights, namely:
It is worth noting in Waratah Coal (No 2), the Court helpfully outlines those rights that the environmental groups say are to be limited beyond the extent that is reasonable or demonstrably justifiable should the mining lease and environmental authority be recommended by the Court. In addition to the above rights, the environmental groups also rely upon:
We will need to wait and see what the Court ultimately finds in respect of the compatibility of its recommendation to the Minister with these human rights. In particular, the recommendation by the Court:
2021 and beyond
What the above judgments demonstrate is that our state courts are beginning to consider the interpretation and application of the Act. This trend will likely continue into 2021 as the passage of time since the introduction of the Act will allow for these courts to hear and provide further guidance on how to interpret the Act.
It is clear that this emerging area of Queensland jurisprudence is one that all public sector lawyers will need to keep an eye on this year.
Author: Joanne Jary
  QSC 293 at 
  QSC 293 at 
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Opening of the Registry
High Court of Australia, 1 of 2021
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Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd  HCA 2
Appeal allowed. Administrative law – Apprehended bias – Relief – Jurisdiction of inferior courts – Where first respondent applied for additional mining leases and amendment to existing environmental authority ("applications") – Where appellant and others lodged objections to applications – Where first decision of Land Court of Queensland ("Land Court") recommended that both applications be rejected – Where Supreme Court of Queensland rejected arguments by first respondent that recommendations made by Land Court affected by apprehended bias, but held recommendations involved errors of law and remitted certain matters to Land Court for reconsideration – Where second decision of Land Court constituted by different Member recommended applications be approved subject to conditions – Where amendment to environmental authority granted by delegate of second respondent – Where Court of Appeal allowed cross-appeal by first respondent and held that recommendations in Land Court's first decision affected by apprehended bias – Whether open to Court of Appeal, after finding that recommendations in Land Court's first decision affected by apprehended bias, not to refer matters to which recommendations related back to Land Court for full reconsideration, and instead to make consequential orders limited to declaration that procedural fairness not observed – Whether matters to which recommendations related should not be referred back to Land Court on basis of discretion to refuse relief. Environmental Protection Act 1994 (Qld), Ch 5. Judicial Review Act 1991 (Qld), s 30. Land Court Act 2000 (Qld). Mineral Resources Act 1989 (Qld), Ch 6.
Kingdom of Spain v Infrastructure Services Luxembourg S.a.r.l.  FCAFC 3
ARBITRATION – international arbitration – applications for recognition and enforcement of awards of the International Centre for Settlement of Investment Disputes (ICSID) under s 35(4) of the International Arbitration Act 1974 (Cth) (‘Arbitration Act’)
PRIVATE INTERNATIONAL LAW – foreign state immunity – where foreign state respondent asserts sovereign immunity – interaction between s 9 of the Foreign States Immunities Act 1985 (Cth) (‘Immunities Act’) and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) which is given the force of law by s 32 of the Arbitration Act – where s 9 of the Immunities Act provides that a foreign state is immune from the jurisdiction of the courts of Australia in a proceeding – where s 10 of the Immunities Act provides that a foreign state is not immune in a proceeding in which it has submitted to jurisdiction whether by agreement or otherwise – whether by Art 54(2) of the ICSID Convention the foreign state respondent has agreed to submit itself to the jurisdiction within the meaning of s 10 of the Immunities Act
PUBLIC INTERNATIONAL LAW – foreign state immunity – interpretation of the ICSID Convention – whether the ICSID Convention excludes any claim for foreign state immunity in proceedings for the recognition and enforcement of an award – meaning of recognition and enforcement in Art 54 and execution in Art 55 – where Art 55 provides that nothing in Art 54 shall be construed as derogating from the law in force in any Contracting State in relation to immunity from execution
Foreign States Immunities Act 1985 (Cth) Pts II, IV; ss 3, 7, 9, 10; International Arbitration Act 1974 (Cth) Pt IV; ss 32, 34, 35; Judiciary Act 1903 (Cth) s 39B; Federal Court Rules 2011 (Cth) r 36.32; Convention on the Recognition and Enforc
Ashby v Commonwealth of Australia  FCA 40
ADMINISTRATIVE LAW – application for review of decision to refuse application for an act of grace payment under s 65(1) of the Public Governance, Performance and Accountability Act 2013 (Cth) – where act of grace payment sought for the purpose of satisfying legal fees incurred in litigation relating to alleged conduct by a member of the Parliament of Australia – where previous litigation discontinued before trial by the applicant due to purported financial pressure – where the Member of Parliament was granted an act of grace payment in relation to his legal fees – whether there was an error by the delegate of the Minister in failing to assess the claim in support of the act of grace application that the applicant was a whistle-blower, alternatively that this claim was not assessed to the requisite level of detail – whether the delegate’s finding that there was no basis for an argument that the previous act of grace payment to a litigant had an influence over the litigation was irrational – whether the delegate failed to have regard to relevant evidence that the proceeding was not highly politicised – whether there was any error in the delegation rendering the decision-making power of the delegate void – held: the delegate did not fail to assess the whistle-blower claims made by the applicant and was not required to give further or better consideration to these claims – the delegate’s finding that the act of grace payment made to the Member of Parliament did not influence the litigation was not irrational and was not outside of the exercise of their jurisdiction – there was no failure to deal with evidence relating to the claims that the proceeding was highly politicised – the applicant’s construction of the delegation power was not sensible or pragmatic and the conduct of the delegate in this case was clearly contemplated by the delegation’s authorising Act – application dismissed with costs
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 16)
Fair Work Act 2009 (Cth)
Financial Management and Accountability Act 1997 (Cth) s 33
Secretary of the Department of Finance (Cth), Public Governance, Performance and Accountability (Finance Secretary to Finance Officials) Delegation 2020 (No 1) (22 January 2020) sch 1A pt 11
Members of Parliament (Staff) Act 1984 (Cth)
Judiciary Act 1903 (Cth) s 39B
Public Governance, Performance and Accountability Act 2013 (Cth) ss 65(1), 107, 109
Public Governance, Performance and Accountability Rule 2014 (Cth) s 24
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Hanson & Ors v Walters  QCA 18
STATUTES – ACTS OF PARLIAMENT - INTERPRETATION – OTHER MATTERS – where the respondent was suspended from duty under s 137 of the Public Service Act 2008 (Qld) over alleged conduct concerns – where the letter notifying the respondent of his suspension stated that his suspension would remain in place until an investigation could be undertaken and the outcome had been considered – where the primary judge found that the failure to specify an end date in the suspension notice contravened the requirement under s 137(2)(a) of the Public Service Act 2008 (Qld) – where the primary judge erred in construing s 137 of the Public Service Act 2008 (Qld) – whether the suspension notice described the event on which the suspension would end in terms that made the end of the suspension ascertainable by reference to the event
ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – ORDERS TO QUASH DECISION – where the respondent was suspended from duty under s 137 of the Public Service Act 2008 (Qld) over alleged conduct concerns – where the primary judge exercised discretion under s 30(1)(a) Judicial Review Act 1991 (Qld) to quash the suspension decision from the date it was made – whether the primary judge erred by considering inadmissible evidence – whether the primary judge erred in quashing the suspension decision from the date it was made
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – PARTICULAR CASES – where the respondent was suspended from duty under s 137 of the Public Service Act 2008 (Qld) over alleged conduct concerns – where the decision to suspend the respondent was made under the Credentialing Procedure for practitioners in Metro North Hospital and Health Service – where the Credentialing Procedure was made pursuant to a statutory instrument that satisfied s 7(2) Statutory Instruments Act 1992 (Qld) – where the Credentialing Procedure results in practitioners being held out by the relevant Health Service as qualified to treat a patient in the area of clinical practice for which they are credentialed at the relevant public health facility – whether the Credentialing Procedure was a standard or a guideline of a public nature under s 7(3) Statutory Instruments Act 1992 (Qld). Judicial Review Act 1991 Qld s 30; Public Service Act 2008 Qld s 25, s 99, s 137, s 189; Statutory Instruments Act 1992 Qld s 7
Powe v David Hansen on behalf of Logan City Council  QDC 12
CRIMINAL LAW – PLANNING ACT OFFENCES – APPEAL FROM MAGISTRATES COURT – Interpreters not sworn – inadmissible evidence tendered – whether miscarriage of justice
Justices Act 1886 Qld; Local Government Act 2009 Qld; Oaths Act 1967 Qld; Planning Act 2016 Qld; Sustainable Planning Act 2009 Qld
Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 2)  QLC 4
HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where the objectors contended that the grant of a mining lease and environmental authority would be incompatible with the Human Rights Act 2019 – where the objectors provided particulars to that effect – where the applicant contended that particulars provided did not adequately inform the applicant as to the case they had to meet nor the real issues in dispute – where the applicant sought further and better particulars – where the Department of Environment and Science identified five steps for the Court in complying with s 58 of the Human Rights Act 2019 – where the Department of Environment and Science submitted that the human rights case raised by the objectors was not adequately articulated – where the human rights case involves questions of law and policy as well as facts and circumstances – where the Court concluded requiring further particulars was not the best way to fully articulate the human rights case – where the Court identified different processes for that to occur
ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – PROCEDURE –– PARTICULARS – where the Court has wide discretion in its procedure but must afford procedural fairness – where the Court must assess what particulars are necessary in order for the other party to know what case they must meet – where the applicant sought particulars based on five categories defined by the objectors’ reasons for refusing to provide them – where the Court considered whether other processes could clarify the real issues – where the Court ordered the objectors to provide an exhaustive list of classes of individuals whose human rights they say will be limited by the application being granted – where the Court did not order further particulars on other matters at this stage of the case
Environmental Protection Act 1994 Qld s 182, s 185, s 186(a); Human Rights Act 2019 Qld s 13, s 15, s 16, s 24, s 25(a), s 26(2), s 28, s 58, s 58(1)(a), s 58(1)(b), s 58(2; Mineral Resources Act 1989 Qld s 265(1), s 265(2), s 265(10), s 268; Uniform Civil Procedure Rules 1999 Qld r 157
Crime and Corruption Commission v Acting Deputy Commissioner Wright & Anor  QCAT 18
POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where confidential databases accessed – whether accessed by the subject officer – whether accessed for an official purpose Police Service Administration Act 1990 Qld s 1.4
Young t/as LK & HM Young v Queensland Building and Construction Commission  QCAT 8
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where direction to rectify issued – circumstance of fresh evidence showing responsibility of another building contractor for performance of defective building work the subject of the direction – consideration of Tribunal’s review jurisdiction generally – meaning of ‘building work’ and ‘defective building work’.
Queensland Civil and Administrative Tribunal Act 2009 Qld s 20, s 24; Queensland Building and Construction Commission Act 1991 Qld s 71l, s 72, s 72A, s 86, s 87
Administrative Appeals Tribunal Act 1975
02/02/2021 - Act No. 91 of 1975 as amended
Australian Security Intelligence Organisation Amendment (Permitted Disclosure) Regulations 2021
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Regulatory Powers (Standardisation Reform) Bill 2020 [Provisions]
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Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Act 2020 (Qld)
The key policy objective of Chapter 2 is to improve the actual and perceived integrity and public accountability of State elections and ensure public confidence in State electoral and political processes
Commencement: (1)Chapter 2 commences as follows— Chapter 2 commences as follows— (b)section 22, to the extent it inserts new part 11, division 5, commences on 1 January 2022;
Subordinate legislation reminder
No 144 Electoral Amendment Regulation 2020
5 Amendment of s 8 (Amount of policy development payment to which eligible registered political party is entitled—Act, s 240) (1)Section 5 commences on 1 January 2022
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.