In brief - Affected entities should have appropriate complaints handling procedures to deal with human rights complaints
Who will it affect?
The obligations imposed by the Bill apply to the Queensland Parliament, courts and tribunals, government departments, and public service employees and executives.
They also extend to entities including:
- local governments, councillors and local government employees
- 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
Private schools will not be affected. The Bill provides an example of private schools, which, although performing functions of a public nature in educating students, are not doing so for the state. This is consistent with the Victorian Charter.
Human rights to be protected in Queensland
The human rights protected by the Bill are:
- Recognition and equality before the law
- Right to life
- Protection from torture and cruel, inhuman or degrading treatment
- Freedom from forced work
- Freedom of movement
- Freedom of thought, conscience, religion and belief
- Freedom of expression
- Peaceful assembly and freedom of association
- Taking part in public life
- Property rights
- Privacy and reputation
- Protection of families and children
- Cultural rights—generally
- Cultural rights—Aboriginal people and Torres Strait Islanders
- Right to liberty and security of person
- Humane treatment when deprived of liberty
- Fair hearing
- Rights in criminal proceedings
- Children in the criminal process
- Right not to be tried or punished more than once
- Retrospective criminal laws
- Right to education
- Right to health services
The Bill recognises that human rights are not absolute and may be subject to limits set by laws that are reasonable and justified.
Complaints mechanism to be introduced and Human Rights Commissioner to be granted broad powers
The Bill goes further than the Victorian and ACT laws by including a complaints mechanism for human rights issues. The Bill proposes to rename the Anti-Discrimination Commission Queensland as the Queensland Human Rights Commission, and to give broad powers to the Human Rights Commissioner to compel parties to attend mediation, publish the outcome of complaints and make recommendations about complaints.
The Bill requires a complainant to satisfy certain requirements before making a complaint to the Queensland Human Rights Commission. A complaint will not be accepted unless:
- the complainant has made a complaint about the alleged contravention to the entity which is the subject of the complaint
- 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
The Bill provides that the Human Rights Commissioner must refuse to deal with a complaint that is frivolous, trivial, vexatious, misconceived or lacking in substance. The Commissioner also has discretion to refuse to deal, or continue to deal, with a complaint where the Commissioner considers:
- there is a more appropriate course of action available
- the matter has been appropriately dealt with by another entity
- the way in which the complaint is made does not comply with the complaint requirements
- the complaint is made more than one year after the alleged contravention
Legal claims and compensation
There is no stand-alone legal remedy for a contravention, but if a person has a separate cause of action against an entity covered by the Bill (for example, a judicial review application) a claim under the Bill can be added to the existing claim. This is similar to the position under the ACT's Human Rights Act.
As it stands, monetary damages will not be available for a contravention of a person's human rights.
Timeline of Human Rights Bill review and deadline for written submissions
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. The closing date for written submissions on the Bill is Monday, 26 November 2018. Private sector entities with responsibilities under the proposed laws should consider making written submissions.
Entities should also ensure they have in place appropriate complaints handling procedures to deal with human rights complaints and 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 2019.