Last updated 20 May 2022
The Human Rights Act 2019 (Qld) (Human Rights Act) has enhanced the administrative law regime in Queensland.
The Human Rights Act provides statutory protections for 23 human rights and freedoms.
It requires that the Queensland Government (via public entities) act or make decisions in a way that is compatible with human rights and, in making decisions, give proper consideration to relevant human rights. See the Human Rights Law in Queensland chapter for a full discussion of what is included in the meaning of a ‘public entity’ under the Act.
The Human Rights Act establishes an external review option to a complaint-handling organisation, the Queensland Human Rights Commission (QHRC).
The Human Rights Act has also changed the merits and judicial review framework in Queensland:
- for merits review—QCAT is a public entity when exercising merits review jurisdictions
- for judicial review—the Human Rights Act has expanded existing grounds of statutory review
- for both avenues of review—applicants may piggyback human-rights arguments onto their administrative appeals and judicial review applications, and QCAT and the Supreme Court must interpret laws in a way that is compatible with human rights.
See the Complaints against Government—Judicial Review and Complaints against Government—Administrative Appeals chapters for a more extensive examination of these changes.
Human rights may be relevant to the merits of a decision as well as whether the decision is lawful and procedurally correct. This means that a person aggrieved by the decision of a government entity may have grounds to complain to the QHRC, as well as a lawful basis to raise human-rights arguments in an administrative appeal or judicial review.
The Human Rights Act also improves the administrative law recourse available to individuals aggrieved by government decision making in Queensland. For example, a prisoner who may otherwise have no grounds to access administrative appeal or judicial review under the Corrective Services Act 2006 (Qld) may now have grounds to lodge a complaint with the QHRC where government decision making contravenes their human rights.
However, there is no stand-alone legal remedy for contravention of the Human Rights Act. This means that a person who is complaining about a breach of their human rights cannot apply directly to a court or tribunal to resolve the complaint if it is not resolved in the QHRC. Human rights arguments can only be raised in a tribunal or court where there is an existing complaints avenue available such as a right to administrative appeal or judicial review. Additionally, human rights are not absolute and may be limited and balanced in a way that is consistent with a free and democratic society based on human dignity, equality and freedom.