Last updated 20 May 2022

The Human Rights Act 2019 (Qld) (Human Rights Act) applies to decisions made by public entities in Queensland. Broadly, this includes Queensland State Government departments, local councils, state schools, police and non-government organisations performing public functions. The Act complements and strengthens administrative law in Queensland.

The Human Rights Act alters the administrative review jurisdiction exercised by the Queensland Civil and Administrative Tribunal (QCAT) in three key respects:

  • QCAT is a public entity when exercising merits review jurisdiction during an administrative appeal.
  • Applicants may piggyback human-rights arguments onto their administrative appeal actions.
  • In deciding a judicial review application, QCAT must interpret laws in a way that is compatible with human rights including the laws that bind decision makers.

See the Human Rights Law in Queensland chapter for a more detailed explanation of the 23 protected human rights and freedoms, key operative provisions and an expanded explanation of what is included in the meaning of a ‘public entity’ under the Human Rights Act.

Acting in an administrative capacity

Under the Human Rights Act, QCAT is a public entity for the purpose of the Human Rights Act when acting in an administrative capacity including when it is exercising merits review jurisdiction.

This means that when the tribunal member stands in the shoes of the decision maker in deciding an administrative appeal, they are making a decision as a public entity and must adhere to the obligations on public entities under the Human Rights Act. As a public entity, the tribunal must interpret laws in a way that is compatible with human rights (s 48 Human Rights Act) and act or make decisions that are compatible with human rights and, in making a decision, give proper consideration to a human right relevant to the decision (s 58(1) Human Rights Act).

Human rights during administrative appeal

There is no direct right to bring a breach of the Human Rights Act before QCAT or any other court or tribunal.

However, where a person is asking QCAT to exercise its review jurisdiction, they may be able to argue that the decision maker also breached the Human Rights Act. This is commonly referred to as ‘piggybacking’ a Human Rights Act complaint to another legal action.

For example, a person might ask QCAT to exercise its review jurisdiction on the basis that the correct or preferable decision was not made, and also argue that the decision maker failed to consider their human rights as required by the Human Rights Act.

The tribunal will be required to consider all human rights not just those of the applicant, and the Human Rights Act does not create absolute rights. Human rights may be limited and balanced in a way that is consistent with a free and democratic society based on human dignity, equality and freedom.

Where QCAT finds the decision maker has failed to meet their obligations under the Human Rights Act, QCAT may grant relief or remedy, but not monetary damages, for any breach of human rights.

It is also possible for a question about the application of the Human Rights Act or about the interpretation of statute in accordance with the Act to be referred to the Supreme Court.

See the below case study for how the Human Rights Act may apply to a QCAT review of an administrative decision to issue a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act).

Case study

An applicant applies for a renewal of a positive blue card notice under the Working with Children Act.

Blue Card Services issues a negative notice and the applicant applies to QCAT for a review of the decision.

QCAT must decide the review in accordance with the QCAT Act and Working with Children Act. Additionally, in undertaking the review, the tribunal is acting in an administrative capacity under the Human Rights Act. This means that the tribunal must interpret the QCAT Act and Working with Children Act in a way that is compatible with human rights, must act or make its review decision in a way that is compatible with human rights and give consideration to human rights relevant to the decision.

The applicant may also raise arguments that the reviewable decision infringed their human rights such as the right of a person to privacy and reputation, which includes the right not to have privacy, family, home or correspondence unlawfully or arbitrarily interfered with (s 25 Human Rights Act).

In acting or making its decision, the tribunal may consider other human rights it considers relevant such as the right to a fair hearing (s 31 Human Rights Act).

As human rights are not absolute and may be subject to reasonable limits, the tribunal may consider and balance other human rights making a decision (s 13 Human Rights Act). For example, this may include consideration of the rights of children including the right to protection of families and children (s 26 Human Rights Act).

The Human Rights Act may be considered when interpreting the application of the QCAT Act. For example an application for a non-publication of the applicant’s name may involve consideration of the right to privacy and reputation (s 25 Human Rights Act).

The tribunal must then decide whether to confirm, amend, set aside, substitute the negative notice or refer the decision back to Blue Card Services. In making its own decision about the matter, QCAT should consider whether the decision or action:

  • takes into account the relevant matters in the Working with Children Act and QCAT Act
  • is compatible with human rights and, if any limitations are placed on human rights (whether the applicant’s or other people’s), whether those limitations are reasonable and justifiable under the Human Rights Act.

Case reference: ZZ v Secretary, Department of Justice & anor [2013] VSC 267; Dowling v Director-General, Department of Justice and Attorney-General [2020] QCAT 340; Frost v State of Queensland & Ors [2020] QCATA 144.

Interpretation of laws

The Human Rights Act also requires the tribunal to, as far as possible and while continuing to fulfil its purpose, interpret laws in a way that is most compatible with human rights.

A law is compatible with human rights if it does not limit a human right, or limits a human right only to the extent that is reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom.

The tribunal can refer to international law and the judgements of Australian, foreign and international courts and tribunals when interpreting if a law is compatible with human rights.