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Queensland Government Bulletin

16 February 2021


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Queensland Government Bulletin

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:

  • a body of case law and decisions emerging from Queensland courts, Tribunals and the Human Rights Commission that are assisting public sector lawyers to better understand how to ensure public entities comply with the Act
  • a large number of compatibility statements for legislation that has commenced since 1 January 2020 which demonstrate the ways that government are explaining the human rights impacts of new laws
  • the incorporation of human rights into the day-to-day decision-making frameworks, processes and actions of public entities.   

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 [2020] QSC 54 came to consider the application of this proportionality test for limiting human rights through consideration of a combination of:

  • section 8 (the meaning of compatible with human rights)
  • section 13 (human rights are in addition to other rights and freedoms)
  • section 48 (interpretation of laws) of the Act. 

Applegarth J in this case provided some useful guidance on how the proportionality test should be applied, namely:

  • the application of section 48 of the Act involves two aspects of statutory construction:
    • the consistency of an interpretation with the statutory provision’s purpose
    • an interpretation which is ‘compatible’ with human rights.
  • Section 48(1) of the Act does not authorise an interpretation of statutory provisions which is inconsistent with their purposes. Instead, the provision must be interpreted, to the extent possible that is consistent with their purpose, in a way that is “compatible with human rights”
  • the words “compatible with human rights” require consideration of both section 8 and 13 of the Act: 
    • section 8 requires an assessment of whether there is a limit on the human right, and if so
    • section 13 requires an analysis of whether the limit can be justified. Here Applegarth J noted that in “deciding whether the limit is reasonable and justifiable as mentioned in s 13(1), it is convenient to have regard to the factors in s 13(2) which “may be relevant” in deciding the issue”.  

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) [2020] 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”.[1]

Ryan J then outlined the following elements which an applicant must establish if he or she wishes to pursue a claim for unlawfulness:

  • identify a public entity (under section 9 of the Act)
  • identify the relevant act or decision of the public entity which engaged human rights (under section 58(1) of the Act)
  • seek some relief or remedy regarding the same act or decision on the basis that it was unlawful for some reason other than section 58(1) to piggyback onto that independent ground of unlawfulness, an allegation that the public entity breached section 58(1) of the Act
  • establish that the relevant acts or decisions were not mandated by law (the exception in section 58(2) of the Act)
  • identify the limit on human rights caused by the act or decision (section 8(a) of the Act)
  • establish that the limit is not reasonably and demonstrably justifiable under section 8(b) and 13 of the Act.[2] 

3. Acts and decisions which require consideration of human rights

In the decision of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] 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:

  • on its ordinary meaning, the words “decision” and “act” are broad enough to encompass the Court’s decision on what recommendation to make and the act of making a recommendation
  • the words “make a decision” must be interpreted by reference to the text, scope and purpose of the statute
  • the textual context here does not suggest it is necessary or appropriate to read down the ordinary meaning of the words
  • a broad interpretation of “make a decision” is consistent with the purpose of the Act requiring public entities to act and make decisions in a way compatible with human rights
  • it would be incompatible or incongruent with the purposes of the Act to draw a distinction between the conduct of the hearing before the Court and the making of recommendations to the Minister without some clear expression of that intention in the legislation
  • to not require the Court to consider the compatibility of their decision with human rights would mean that the Minister in receiving his or her recommendations would not have the benefit of the Court’s consideration of the issues which, as a matter of policy, does not advance the purpose of the Act. 

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) [2021] 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:

  • an obligation to afford procedural fairness to the parties
  • an obligation to hear un-particularised objections
  • a limited duty to inquire.

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:

  • the right to life (section 16 of the Act)
  • the right to equality and non-discrimination (based on intergenerational equity) (section 15 of the Act)
  • the right of children to protection in their best interests (section 26 of the Act).

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:

  • property rights (section 24 of the Act)
  • the right not to have the person’s privacy, family home or correspondence unlawfully or arbitrarily interfered with (section 25(a) of the Act)
  • the cultural rights of Aboriginal peoples and Torres Strait Islander peoples (section 28 of the Act). 

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:

  • will be particularly relevant for those public entities making decisions that relate to coal production (whether directly or indirectly) and developments that may increase carbon emissions
  • may provide some guidance on the proper consideration of these “climate change rights”, including the level of detailed consideration and scrutiny that is required, when making such decisions. 

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 

[1] [2020] QSC 293 at [270]
[2] [2020] QSC 293 at [276]

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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
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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 [2021] 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 [2021] 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 [2021] 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) [2021] 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 [2021] 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 [2021] 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



Act compilation

Administrative Appeals Tribunal Act 1975 
02/02/2021 -  Act No. 91 of 1975 as amended


Australian Security Intelligence Organisation Amendment (Permitted Disclosure) Regulations 2021 
05/02/2021 - This instrument amends the Australian Security Intelligence Organisation Regulation 2016 to make consequential and technical updates following the commencement of Schedule 1 to the Australian Security Intelligence Organisation Amendment Act 2020.


Regulatory Powers (Standardisation Reform) Bill 2020 [Provisions]
On 10 December 2020 the Senate referred the provisions of the Regulatory Powers (Standardisation Reform) Bill 2020 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 19 February 2021.


Acts Commencement

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.

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