Think globally, act locally – the impact of the Human Rights Act 2019 (Qld) on local councils
Human rights are the inalienable rights and freedoms that belong to every person simply because they are human. They are based on the principles of freedom, respect, equality and dignity, which recognise the inherent value of each person, regardless of the person’s background, geographical location, physical appearance, thoughts or beliefs.
Human rights in Australia
Australia was one of 51 members who founded the United Nations (UN) and one of eight nations involved in the drafting of the Universal Declaration of Human Rights (UDHR) which was adopted by the UN in 1948.
Since 1948, Australia has ratified a number of UN treaties such as the International Covenant on Civil and Political Rights 1966 (ICCPR) and the International Covenant on Economic and Social and Cultural Rights 1966 (ICESCR) among others.
Countries, such as Australia, who ratify or join an international treaty voluntary accept legal obligations under international law to uphold the stated values. Though Australia has obligations under international law to respect, promote and protect human rights, until enshrined in domestic law, these obligations are difficult to enforce.
Nationally, Australia lacks a legislative framework with respect to human rights. However, the Australian Capital Territory, Victoria and now Queensland have each passed individual acts which safeguard human rights.
Human Rights Act 2019 (Qld)
The Human Rights Act 2019 (Qld)(Act) commenced in full on 1 January 2020 and offers protection for 23 human rights. Public entities, such as local councils, must uphold these rights when making decisions, creating laws, setting policies and providing services.
The main objectives of the Act are to:
The Act is complementary to a number of other pieces of legislation and aims to ensure that public powers and functions are exercised in a principled way and not misused.
Areas of protection
The Act sets out 23 rights which have been taken from the UDHR, ICCPR and ICESCR. Human rights in which protection is offered include the right to:
The Act also explicitly recognises cultural rights and, in particular, the distinct cultural rights of Aboriginal peoples and Torres Strait Islander peoples.
The Act is an important development in recognising the essential role human rights play in a democratic and inclusive society. The Act works by placing obligations on various stakeholders, including public entities.
Public entities are defined as “carrying out functions of a public nature” for the State.
A public entity is an organisation or body providing services to the public on behalf of the State or another public entity. The public service and its employees are examples of core public entities for the purposes of the Act.
The Act states that public entitles have to act compatibly with human rights and give proper consideration to human rights when making decisions. Under the Act, “compatible with human rights” means an act or decision that does not limit a human right, or limits a human right only to the extent that is “reasonable and demonstrably justifiable”.
The Act acknowledges human rights are not absolute and may be subject to reasonable limits that can be justified under the law. Any limitations on rights must have a clear legal basis and they must be reasonable and demonstrably justifiable in the circumstances.
A right may be limited or balanced with other rights to ensure protecting one human right do not impinge on others.
Section 13(2) of the Act provides public entities with guidance on when human rights may be limited. It lists the following factors for consideration:
Effect on local councils
As one of only three states and territories in Australia to have passed human rights legislation, it is recommended that local councils begin to develop ways in which they can expand on already existing policies and procedures to align with the legislation and protections it offers.
According to the Queensland Human Rights Commission, a number of public entities have already taken action to develop and foster human rights. Code of Conduct documents in many public entities reflect a culture of human rights. For example, the Local Government Act 2009 reinforces the local government principles of transparent and effective processes and decision making in the public interest; democratic representation, social inclusion and meaningful community engagement; good governance of and by local government; and the ethical and legal behaviour of councillors and local government employees. Furthermore, the State Government Code of Conduct is based around the principles of integrity, promoting public good, accountability, transparency and commitment to the system of government. Consideration of human rights is integral in the implementation of these functions.
A number of ways in which local councils can incorporate the Act and its principles include:
If you would like to implement or review your human rights policy, develop and/or deliver induction or refresher training to employees on human rights, or investigate and/or deal with a complaint regarding a breach of human rights, please contact our Workplace Relations & Safety team here.
Author: Rachel Drew
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Office of Local Government Circulars
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Queensland Planning Legislation
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Skabal Pty Ltd v Boroondara City Council  VSC 532
LOCAL GOVERNMENT – Council granted permit to vary easement – Plan of variation of easement registered on title – Application for leave to appeal from Victorian Civil and Administrative Tribunal’s refusal of request to cancel permit, under s 87 Planning and Environment Act 1987 (Vic) – Whether Tribunal had power to cancel permit under s 88 Planning and Environment Act 1987 (Vic) – Permit related to ‘any other development of land’, within s 88(b) – Permit did not relate to the use of land, within s 88(c) – Whether permit spent – Development ‘substantially completed’ on registration of plan of variation of easement – Tribunal had no power to cancel permit – Planning and Environment Act 1987 (Vic), ss 6A(2), 47(1), 87, 88; Subdivision Act 1988 (Vic), s 23.
Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council (No 2)  VSC 513
ADMINISTRATIVE LAW — Judicial review — Notification to Council of alleged nuisance due to noise from wind farm, under s 62(1) Public Health and Wellbeing Act 2008 (Vic) — Council resolution under s 62(3), recording finding of intermittent nuisance of the kind alleged and Council’s opinion that matter better settled privately — Whether resolution amenable to certiorari — Whether Council failed to have regard to mandatory considerations in finding that a nuisance existed — Whether Council disregarded material essential to performance of its statutory task — No jurisdictional error established — Public Health and Wellbeing Act 2008 (Vic), s 62.
Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council  VSC 512
ADMINISTRATIVE LAW — Judicial review — Notification to Council of alleged nuisance due to noise from wind farm, under s 62(1) Public Health and Wellbeing Act 2008 (Vic) — Council resolution under s 62(3), recording finding of intermittent nuisance of the kind alleged and Council’s opinion that matter better settled privately — Whether wind farm operator had standing to seek judicial review of Council’s resolution — Whether resolution amenable to certiorari — Whether Council failed to have regard to mandatory considerations in finding that a nuisance existed — Whether Council disregarded material essential to performance of its statutory task — No jurisdictional error established — Public Health and Wellbeing Act 2008 (Vic), s 62.
Citizen Outdoor Pty Ltd v Wangaratta RCC  VCAT 925
Section 79 of the Planning and Environment Act 1987; single-sided electronic promotion sign; Industrial 1 Zone; character; amenity; Amendment C79.
Pace Development Co 10 Pty Ltd v Moreland CC  VCAT 905
Moreland Planning Scheme; Section 79 the Planning and Environment Act 1987; former Pentridge Prison site; Expired permit for 7-8 storey building; Development of two 16 storey towers containing apartments, supermarket and retail premises, Pentridge Village Design Guidelines and Master Plan 2019; Pentridge Design Guidelines and Masterplan 2014.
JDJ Capital Pty Ltd v Greater Geelong CC  VCAT 920
Planning permit PP-407-2019 was issued by Greater Geelong City Council on 20 December 2019, for the construction of six stores and one warehouse, and a seven lot subdivision of land. Application under section 80 of the Planning and Environment Act 1987 – to review conditions 4(a), 4(c), 9, 18(a) and 18(c) contained in the permit.
Ho v Brimbank CC  VCAT 917
Section 77 of the Planning & Environment Act 1987; Brimbank Planning Scheme; Five dwellings – Neighbourhood character & carparking (GRZ1; Clauses 21.07, 52.06 & 55)
Holahan v Melton CC  VCAT 896
Section 82 Planning and Environment Act 1987; Melton Planning Scheme; Neighbourhood Residential Zone; Childcare centre; Need; Amenity; Traffic and car parking
Sandhu v Maroondah CC  VCAT 895
Section 77 Planning and Environment Act 1987, Maroondah Planning Scheme, Neighbourhood Residential Zone – Schedule 3, Significant Landscape Overlay – Schedule 3, neighbourhood character, landscape character, three dwellings, paving in front of dwellings.
Sivasubramaniam v Monash CC  VCAT 885
Retrospective application to amend the endorsed plans for Permit TPA/43950 to alter the roof form and façade of Dwelling 2. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant an amended permit.
Walter v Whitehorse CC  VCAT 884
Removal of one tree under the Significant Landscape Overlay Schedule 9 Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit.
Moniton Pty Ltd v Monash CC  VCAT 864
Section 77 Planning and Environment Act 1987; Monash Planning Scheme; Industrial 1 Zone; Amendment to permit; Warehouse; showroom; office uses; Car parking reduction; Access to a road in a Road Zone Category 1.
Stojanovski v Greater Geelong CC  VCAT 897
Section 82 Planning and Environment Act 1987; Section 51(5) Victorian Civil and Administrative Tribunal Act 1998; No appearance by applicant for review; Confirm decision of the Council.
Grodski v Stonnington CC  VCAT 878
Section 77 of the Planning and Environment Act 1987; Stonnington Planning Scheme; General Residential Zone; Heritage Overlay HO374; Medical Centre; Three Practitioners; Appropriateness of Location; Response to Heritage Policy; Built Form; Amenity Impacts; Car Stackers. No permit
Brown v Whitehorse CC  VCAT 891
Section 82 and 80 of the Planning and Environment Act 1987, Whitehorse Planning Scheme, NRZ3, SLO9, Repeat Appeal, Landscape Character, Neighbourhood Character
Maddingley Brown Coal Pty Ltd v Moorabool SC (Costs)  VCAT 908
Costs – Application for costs by respondent and responsible authority following summary dismissal – Where application by applicant misconceived – Whether appropriate to award costs – relevant principles to be applied – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75(2), 109 – Costs awarded.
Sim v Knox CC  VCAT 900
Section 77 of the Planning & Environment Act 1987; Knox Planning Scheme; General Residential Zone Schedule 2; Construction of three dwellings; policy; neighbourhood character; landscape character
Kimberley Gardens Serviced Apartments PL v Glen Eira CC  VCAT 883
Amendments to planning permit GE/PP-29111/2016, which allows the use and development of the subject land, and associated works, for a three storey retirement village and basement parking. Application under section 87A of the Planning and Environment Act 1987 to amend a permit issued at the direction of the Tribunal.
O'Reilly v Mornington Peninsula SC  VCAT 866
Construction of a hay shed; Loss of neighbour’s view; Section 173 agreement controlling vegetation planting and maintenance; Whether piecemeal application; Whether varying consent position acceptable; Planning merits of hay shed.
Centraland Project Management No 1 Pty Ltd & Luxe Advisory Pty Ltd v Bayside CC  VCAT 874
Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit. Decision made on the papers. Construction of a three storey, 4 level building comprising basement car parking and seven apartments
Hui v Darebin CC  VCAT 887
Section 77 of the Planning and Environment Act 1987; Darebin Planning Scheme; Residential Growth Zone; single site – restricted width; ‘reverse living’ design; building setbacks; construction over driveway; internal amenity; space for landscaping; overdevelopment.
Amira v Port Phillip CC  VCAT 861
Sections 87 & 89 of the Planning and Environment Act 1987; Port Phillip Planning Scheme; Request to cancel permit; Standing; Delay; Failure to give notice; Mis-statement; Concealment of fact; Mistake; Merits; Awareness; Disadvantage; Fairness
Cottier Estate Pty Ltd v Baw Baw SC  VCAT 824
Section 80 Planning and Environment Act 1987; Urban Growth Zone; Drouin Precinct Structure Plan; Subdivision; Conditions.
Casale v Melbourne CC  VCAT 886
Construction of a dwelling on a lot less than 300 square metres and waiver of one car space.
Application under section 80 of the Planning and Environment Act 1987 – to review condition 1(a) contained in the permit.
R & D Finance Consultants Pty Ltd v Darebin CC  VCAT 892
Application under section 77 of the Planning and Environment Act 1987; Review the refusal to grant a permit; Darebin Planning Scheme; Commercial 1 Zone (C1Z); Design and Development Overlay – Schedule 17 (DDO17); Substantial Housing Change Area; Strategic Corridor; Construction of two to four storey building; Use of land for retail premises, two apartments and four townhouses; Underdevelopment; Dwelling typology; Car parking reduction; Solar orientation; Amenity impacts.
Lourey v Mornington Peninsula SC  VCAT 881
Mornington Peninsula Planning Scheme; assessment of alterations and additions to a dwelling within Schedule 18 to the Design and Development Overlay; landscape outcomes within Schedule 18 to the Design and Development Overlay.
Daffey v Surf Coast SC  VCAT 869
Section 82 Planning and Environment Act 1987; Surf Coast Planning Scheme; General Residential Zone; Design and Development Overlay; Significant Landscape Overlay; Neighbourhood Character Overlay; Bushfire Management Overlay; Dwelling; Inclinator
Harsley v Wyndham CC  VCAT 876
Subdivision of land into 2 lots. Application under section 77 of the Planning and Environment Act 1987 – to review the refusal to grant a permit
Rowe v Murrindindi SC  VCAT 875
Three lots used for cattle grazing; Proposal for a dwelling to manage the land; Management of herd and land management plan not sufficient reasons to approve dwelling
Nolan v Yarra CC  VCAT 842
Section 82 Planning and Environment Act 1987; Yarra Planning Scheme; Public Park and Recreation Zone; Heritage Overlay; Demolition
Jones v Port Phillip CC  VCAT 873
Section 80 Planning and Environment Act 1987; Port Phillip Planning Scheme; Neighbourhood Residential Zone Schedule 5; Heritage Overlay Schedule (HO8); Special Building Overlay Schedule 1; Subdivision; Resubdivision; Two lots; Public Open Space Contribution; Whether further subdivision unlikely.
Kalex (Gertrude Street) JV Pty Ltd v Yarra CC  VCAT 870
Section 77 of the Planning & Environment Act 1987; Yarra Planning Scheme; Amend permit of existing mixed use development: Off-site amenity impacts
Maple Media Pty Ltd v Maroondah CC  VCAT 868
Section 77 Planning and Environment Act 1987, electronic major promotion sign, Eastlink, Industrial 1 Zone, Maroondah Planning Scheme, clause 52.05, visual amenity, Eastlink buildings, works and signage policy.
Carroll v Yarra CC  VCAT 778
Sections 80 and 82 Planning and Environment Act 1987; Yarra Planning Scheme; Neighbourhood Residential Zone; Heritage Overlay; Heritage; Neighbourhood character; Amenity.
Acevski v Bayside CC  VCAT 846
Application under S.79 of the Planning and Environment Act 1987 for review of the failure to grant a permit within the prescribed time. The construction of two dwellings on a lot and alteration of access to a road in a Road Zone Category
David Goode v Gwydir Shire Council (No 2)  NSWLEC 118
The Applicant is to pay the Respondent’s costs in these proceedings as agreed or assessed.
COSTS – unsuccessful applicant in judicial review challenge to development consent for truck wash facility where local council the proponent opposes costs order in favour of successful respondent council – whether public interest litigation
McGargill v The Council of the City of Sydney  NSWLEC 1396
APPEAL – modification application – modification granted by theCouncil with a condition imposed – condition required upper floor rear addition to be reduced to what was originally approved – application of the relevant development control plan – control requires that additions respect the predominant rear building line - whether flexibility should be exercised APPEAL – development control order – demolish works order – order remains appropriate – extended to provide additional time for compliance
Toplace Pty Ltd v The Council of the City of Sydney  NSWLEC 121
JOINDER - appeal by Toplace against deemed refusal of an application to modify a condition of development consent - application by the Council to join two further developers with projects in the immediate vicinity of the Toplace development project - all three projects are located at an intersection in Rosebery - intersection requires upgrading - the appealed condition in the Toplace development consent requires the upgrading of the intersection prior to the issue of any occupation certificate for the Toplace development - the amendment sought by Toplace would only require such upgrading prior to the issuing of a Final Occupation Certificate for the Toplace development - whether joinder pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 available - Joinder pursuant to s 8.15(2) not available - whether joinder pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 appropriate - Toplace’s proposed modification has potential to impact directly on the interests of the two developers proposed to be joined - joinder appropriate - joinder ordered MEDIATION - matter potentially amenable to commercial resolution - mediation appropriate in light of joinder - mediation to be ordered
The Beresford Childcare Pty Limited v Strathfield Municipal Council  NSWLEC 1391
DEVELOPMENT APPLICATION – childcare centre – whether acoustic impacts are acceptable
Forbes v Bega Valley Shire Council  NSWIRComm 1055
UNFAIR DISMISSAL – casual employee - regular and systematic basis for a sequence of periods of employment during a period of at least 6 months – reasonable expectation of continuing employment with the employer
Britely Property Pty Ltd v Randwick City Council (No 2)  NSWLEC 1389
DEVELOPMENT APPLICATION – Boarding house – student accommodation – amended plans – application of the floor space ratio definition – variation to floor space standard – variation to maximum height standard – variation to the motorcycle parking standard – whether environmental planning grounds are sufficient to justify the variation – appeal dismissed
Mr Seton argues this ground should be rejected as within the correspondence the officer from Transport for NSW properly acknowledges that “parking rates are a matter for the local council Exhibit 9) and further the letter makes no reference to the provision of motorcycle parking.
Hossein Yamini v The Council of the City of Sydney (No 2)  NSWLEC 120
COSTS – costs in appeal from Local Court – s 70 Crimes (Appeal and Review) Act 2001 – Council on notice appellant may not be guilty – Council unreasonably failed to investigate relevant matter – appellant awarded costs
222 Botany Road Pty Ltd v The Council of the City of Sydney  NSWLEC 1388
DEVELOPMENT APPLICATION – change in use – conversion of commercial units to serviced apartments – amenity – consistency with residential unit standards
Zhiva Living Dural Pty Limited v Hornsby Shire Council  NSWCA 180
APPEAL – appeal against Land and Environment Court judge’s decision to refuse remitter to commissioner after upholding s 56A appeal – whether denial of procedural fairness by not giving parties opportunity to be heard on matters not raised on s 56A appeal – extension of time to file appeal granted – leave to appeal granted – appeal upheld – whether matter to be remitted to judge or commissioner – matter remitted to commissioner
Jiang v City of Ryde Council  NSWLEC 1378
APPEAL – development application – dual occupancy – whether the lot meets the development standard for minimum road frontage – whether the development is consistent with the desired future character
Penrith City Council v Dincel Construction System Pty Limited (No 3)  NSWLEC 117
EVIDENCE — Course of evidence — Reopening case — Application to rely upon further updating evidence — Leave granted
Woollahra Municipal Council v SJD DB2 Pty Limited  NSWLEC 115
APPEAL – appeal against a Commissioner’s decision on questions of law – shoptop housing development contravened height and FSR development standards – decision to grant development consent – objectives of height and FSR development standards – consistency with desired future character of neighbourhood or area – whether misconstruction of “desired future character” – whether to be construed by reference to Woollahra Development Control Plan 2015 (WDCP) – whether approved adjoining development that contravened development standards an irrelevant consideration – whether misconstruction of desired future character provisions in
WDCP – whether misdirection in assessing consistency with objective (d) of height development standard to minimise visual intrusion– whether failure to give adequate reasons for satisfaction required by cl 4.6(3) of Woollahra Local Environmental Plan (WLEP) – whether misconstruction of control C3 in s D5.6.2 of WDCP to design for first floor commercial use – no errors of law established
Tasktea Pty Ltd v North Sydney Council  NSWLEC 1366
DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – shop top housing development – exceedance of the height of buildings development standard
Kayellou v Canterbury Bankstown Council  NSWLEC 1361
DEVELOPMENT APPLICATION – Weight given to draft Local Environmental Plan – State Environmental Planning Policy (Affordable Rental Housing) – Character of the local area
Lipoma Pty Ltd & Anor v Redland City Council & Anor  QCA 180
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – OTHER MATTERS – where the first respondent approved an application for a development permit – where the developer was the second respondent – where the permit sought to reconfigure a lot, and a preliminary approval for material change of use – where the change was for a mixed-use development, including a shopping centre – where the applicants opposed the second respondent’s application in the Planning and Environment Court – where that challenge was upheld – where this Court remitted the matter to the Planning and Environment Court based on certain errors in approach – where, on the second hearing, the Planning and Environment Court came to the opposite conclusion, supporting the first respondent’s position and dismissing the appeal to it by the applicants – where the development application was made under the Sustainable Planning Act 2009 (Qld) when the 2006 Scheme was in force – where the 2018 Redland City Plan (2018 Scheme) has been adopted since the matter was before this Court in 2018 – where the learned trial judge concluded that the proposal was in conflict with the 2006 Scheme – where the learned trial judge concluded that it was appropriate to give no weight to the 2018 Scheme in the assessment of the subject application – where that conclusion was attacked as an error before this Court – whether the 2018 Scheme is the Council’s current statement – whether the 2006 Scheme and the 2018 Scheme are an expression of the “public interest” – whether the learned trial judge erred in finding that there were “sufficient grounds”, in the public interest, to depart from the planning instrument
Planning and Environment Court Act 2016 Qld s 63; Sustainable Planning Act 2009 Qld s 242, s 326, s 329
Subordinate legislation as made – 28 August 2020
No 162 Planning (Walkable Neighbourhoods) Amendment Regulation 2020
No 163 Planning Legislation (Fees and Other Amounts) Amendment Regulation 2020
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