Last updated 1 December 2020

Before contemplating a Human Rights Act 2019 (Qld) (Human Rights Act) complaint, two important matters should be understood. Firstly, human rights will generally be raised alongside other existing legal avenues of review, appeal or complaint. Secondly, human rights may be limited.

Other avenues of review, appeal or complaint

Generally, when a person believes that a public entity has breached their human rights, they will have a range of options to review, appeal or complain under the law that governs the decision and binds the public entity (see Table 1 for some examples). A complaint under the Human Rights Act should usually be considered in addition to, rather than instead of, these existing options.

The Human Rights Act broadens and formalises human rights protection in Queensland. However, outcomes under the Human Rights Act must generally be achieved by agreement, with the Act limiting recourse against the public entity to a complaint and conciliation (mediation) in most cases. There is no standalone legal action, meaning that a Human Rights Act complaint cannot be brought directly before a court or tribunal if it cannot be resolved by agreement, and there is no right to seek damages (compensation) from a public entity.

This means that, in most cases, a Human Rights Act complaint should generally be raised alongside existing avenues to review, appeal or complain against a public entity. These avenues will continue to provide the substantive outcomes for many complaints, for example by giving the affected person an avenue to appear before a court or tribunal and ask to set aside the decision, have orders made against the public entity and seek damages (compensation).

Table 1: Some examples of existing avenues to review, appeal or complain and possible recourse in addition to the Human Rights Act argument.

Example 1:  A person who believes they have been discriminated against by a public entity.

  • A discrimination complaint to the Queensland Human Rights Commission (QHRC) under the Anti-Discrimination Act 1991 (Qld) (Anti-discrimination Act).
  • If unresolved, a complaint to the Queensland Civil and Administration Tribunal (QCAT) or Queensland Industrial Relations Commission.

Example 2:  An accused person charged with a criminal offence believes police have dealt with them unlawfully during arrest.

  • A police complaint to Ethical Standards Command, Crime and Corruption Commission or the Queensland Ombudsman.
  • A submission to discontinue the prosecution with reference to the Queensland Police Service Operational Procedures Manual.
  • A defence or legal argument raised during court proceedings for the criminal charge.

Example 3:  A victim who believes they have been treated unfairly by police.

  • A police complaint to Ethical Standards Command, Crime and Corruption Commission or the Queensland Ombudsman.
  • A discrimination complaint to the QHRC under the Anti-discrimination Act.
  • If the complaint is unresolved, a complaint to QCAT.

Example 4:  A parent who objects to a placement decision about a child by Child Safety.

  • An internal complaint to Child Safety.
  • An application to QCAT to have a Child Safety decision administratively reviewed.
  • Where the complaint is about the care being provided at the placement, a complaint to the Office of Public Guardian.

Example 5:  A person appealing a restrictive-practices decision (e.g. containing or secluding a person with a cognitive or intellectual disability) under guardianship law.

  • An application to QCAT to review the decision.

Example 6:  A child who has been suspended or excluded from a school, and believes the decision was discriminatory.

  • A request to have the Chief Executive review the decision under relevant Department of Education procedure.
  • A judicial review application to the Supreme Court.
  • A discrimination complaint under the Anti-discrimination Act to the QHRC. If unresolved, an application to QCAT.

Example 7:  A person reviewing a decision by Blue Card Services not to issue a positive notice.

  • An internal complaint to Blue Card Services.
  • An application to QCAT to review the decision.

Before contemplating a Human Rights Act complaint, it is essential that any other avenues of review, appeal or complaint, as well as any relevant time limits that arise, are understood. Legal advice should be sought before making the Human Rights Act complaint.

Human rights may be limited

The Human Rights Act does not give absolute rights. Instead, the Human Rights Act provides that rights may be subject to reasonable limits that can be justified in a free and democratic society based on human dignity, equality and freedom.

In deciding whether a limit is reasonable and justifiable, the following factors listed in s 13 of the Human Rights Act may be relevant:

a.  the nature of the human right
b.  the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom
c.  the relationship between the limitation and its purpose
d.  whether there are any less restrictive and reasonably available ways to achieve the purpose
e.  the importance of the purpose of the limitation
f.  the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right
g.  the balance between the matters mentioned under (e) and (f).

These factors are not an exhaustive list, but simply a guide derived from s 13 of the Human Rights Act. The human rights of a particular individual may also be limited when considering the competing rights and interests of other individuals or counteracting matters of public policy. The application of Queensland, domestic and international caselaw is likely to clarify the limitations that may be placed upon human rights.

In addition, some rights contain internal limitations. For example, the right to life only prohibits arbitrary deprivation of life (s 16 Human Rights Act), the protection of assemblies is limited to peaceful assemblies (s 22 Human Rights Act), rights to vote and be elected apply only to those eligible to participate in those processes (s 23 Human Rights Act) and those detained without charge must be segregated from convicted offenders unless it is reasonably necessary to place them in unsegregated detention (s 30 Human Rights Act).