In brief

Local governments will be affected by the Human Rights Bill 2018 and should provide information to councillors and employees about their legal obligations and have appropriate complaints handling procedures to deal with human rights complaints.

The Human Rights Bill 2018 (Bill) was introduced into the Queensland Parliament on 31 October 2018.  While the Bill is broadly consistent with the Victorian Charter of Human Rights and Responsibilities Act 2006 and the ACT Human Rights Act 2004, if passed the law will go further with additional rights for Queenslanders including the right to health and education and the introduction of a complaints mechanism allowing people to complain about human rights issues.

For local governments, the Bill will have particular ramifications and local governments should start considering the human rights triggers in local laws, community engagement practices, service delivery protocols, administrative decision-making and appeals processes and complaints mechanisms in preparation for the new laws.  

Who will it affect?

The obligations imposed by the Bill apply to the Queensland Parliament, courts and tribunals and public entities. The entities include local governments, councillors and local government employees.

Other entities the Bill will extend to include:

  • public universities and vocational education providers;
  • hospital and health services;
  • government owned corporations; 
  • registered NDIS providers when they are performing functions of a public nature in Queensland; 
  • private companies engaged to deliver services to the public on behalf of the government such as public transport, housing and corrective services.

What human rights are to be protected?

The human rights protected by the Bill are: 

1. Recognition and equality before the law

2. Right to life

3. Protection from torture and cruel, inhuman or degrading treatment

4. Freedom from forced work

5. Freedom of movement

6. Freedom of thought, conscience, religion and belief

7. Freedom of expression

8. Peaceful assembly and freedom of association

9. Taking part in public life

10. Property rights

11. Privacy and reputation

12. Protection of families and children

13. Cultural rights—generally

14. Cultural rights—Aboriginal people and Torres Strait Islanders

15. Right to liberty and security of person

16. Humane treatment when deprived of liberty

17. Fair hearing

18. Rights in criminal proceedings

19. Children in the criminal process

20. Right not to be tried or punished more than once

21. Retrospective criminal laws

22. Right to education

23. Right to health services 

How will it impact local governments?

For local governments, the human rights that are likely to be of most impact include:

Right protected


Recognition and equality before the law 

Every person has the right to recognition as a person before the law and the right to enjoy their human rights without discrimination. Every person is equal before the law and is entitled to equal protection of the law without discrimination. Every person is entitled to equal and effective protection against discrimination.

Freedom of movement

Every person lawfully within Qld has the right to move freely within, enter or leave Qld and choose where to live.

Freedom of thought, conscience, religion and belief

Every person has the right to think and believe what they want and to have or adopt a religion, free from external influence. This includes the freedom to demonstrate a religion individually or as part of a group, in public or in private.

Freedom of expression

Every person has the right to hold and express an opinion, through speech, art, writing (or other forms of expression) and to seek out and receive the expression of others' options.

Peaceful assembly and freedom of association

Every person has the right to join or form a group and to assemble. The right to assembly is limited to peaceful assemblies.

Taking part in public life

Every person in Qld has the right and opportunity without discrimination to take part in public life. Every eligible person has the right to vote, be elected and have access on general terms of equality to the public service and office.

Property rights

All persons have the right to own property alone or in association with others. A person must not be arbitrarily deprived of their property.

Privacy and reputation

A person’s privacy, family, home and correspondence must not be unlawfully or arbitrarily interfered with. A person has the right not to have their reputation unlawfully attacked.

Cultural rights - generally

All persons with particular cultural, religious, racial and linguistic backgrounds have a right to enjoy their culture, declare and practise their religion, and use their language, in community with other persons of that background.

If passed, the Bill will have an impact on the day-to-day work of local governments. In practice this means that local governments, councillors and local government employees must: 

  • Make, interpret and apply local laws consistently with human rights.
  • Give proper consideration to human rights when making decisions.
  • Ensure service delivery is compatible with human rights.
  • Ensure local government employees go about their work in a way that respects human rights.
  • Handle complaints from members of the community about alleged breaches of human rights.

The Bill recognises that human rights are not absolute and may be subject to limits set by laws that are reasonable and justified.

Human rights are required to be balanced against the rights of others and public policy issues of significant importance. 

The test for deciding whether a human right limitation under a law is reasonable is if it can be demonstrably justified in a free and democratic society based on will, human dignity, equality and freedom. The onus is on the local government seeking to limit a human right to demonstrate that the limit is reasonably justified in the circumstances. There are a number of factors outlined in the Bill that are intended to provide a guide.

A good example is the use of CCTV systems in public spaces and on local council owned property such as libraries, swimming pools and waste transfer stations. Local governments will need to consider whether the restriction on the human right to privacy and reputation by the use of CCTV in public spaces is demonstrably justified.  

Preparing procedures to handle human rights complaints

The Bill includes a complaints mechanism for human rights issues. The new Queensland Human Rights Commission (QHRC) will have broad powers to compel parties to attend mediation, publish the outcome of complaints and make recommendations about complaints.  

The Bill requires a person making a complaint against a local government to satisfy the following requirements before making a complaint to the QHRC:

  • the person has first made a complaint about the alleged contravention to the local government;
  • at least 45 business days have elapsed since the complaint was made;
  • the person has not received a response to the complaint, or has received a response but considers it to be an inadequate response.

This will require preparation by local governments to be fully equipped to attend to human rights complaints. This is likely to require additional resourcing, training of employees, a revised complaints strategy and ensuring the complaints process is available in various communication preferences to be consistent with the right to equality before the law. 

The QHRC will be able to refuse to deal with a complaint that is frivolous, trivial, vexatious, misconceived or lacking in substance.  

In our experience, such power is rarely exercised before the respondent party has expended significant time and energy in dealing with the issue through internal and external processes. We recommend that local governments proceed on the basis that in most cases the QHRC will attempt to conciliate and resolve the complaints received.

Legal claims and compensation 

Monetary damages are not available for a contravention of a person's human rights and there is no stand-alone legal remedy for a contravention. However, if a person has a separate cause of action against a local government (for example, a judicial review application) a claim under the Bill can be added to the existing claim. 

We understand submissions have been received in support of a change to the provision to allow for economic remedies for breaches of rights.

Next steps 

The Bill is being reviewed by the Parliamentary Legal Affairs and Community Safety Committee for inquiry and report by 4 February 2019. The Committee will be considering written submissions that were submitted by 26 November 2018.

In preparation, local governments should conduct an audit of public policies, plans, procedures, contracts and local laws to assess whether any parts limit or interfere with human rights and, in the instance that they do, consider whether the limitation is reasonably justified. This process will minimise the risk of breaching human rights and reduce the potential number of contravention complaints. 

Where there is uncertainty as to whether a restriction on a protected right is reasonable and justifiable, advice should be sought to avoid the risk of breaching the protected right. 

Providing training to local government employees on the human rights obligations in the delivery of council services will also be important to ensure employees perform their work and deliver local government services in a way which respects human rights.  

Finally, local governments should ensure they have appropriate complaints handling procedures to deal with human rights complaints and are able to resolve them promptly where possible.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

Related Articles