Last updated 1 December 2020
Section 26 of the Human Rights Act 2019 (Qld) (Human Rights Act) provides protection to the family unit, each child and their best interests and a positive obligation to provide legal frameworks for registering births and names.
Subsection 26(1) acknowledges that families are the fundamental unit of society and are entitled to protection. The term ‘families’ is to be understood broadly, recognising the numerous forms that families may take including extended families, Aboriginal and Torres Strait Islander kin, non-biological families or adopted families.
Subsection 26(2) provides that each child has the right, without discrimination, to protection as needed by the child and in the child’s best interests. The notion of ‘best interests of the child’ acknowledges that children must be afforded additional protection as the most vulnerable members of our society.
Subsection 26(3) provides that every person born in Queensland has the right to a name and birth registration. This right obliges the state to establish a legal framework and process for registration, which can be accessed by a child’s parents or guardians. It is unlikely the Human Rights Act will require the government to extend existing mechanisms for registering a name and birth contained in the Births, Deaths and Marriages Registration Act 2003 (Qld).
The right to protection of families and children will be subject to the general limitation provision in s 13 of the Human Rights Act. This provides human rights may be subject under law to reasonable limits, which are justified in a free and democratic society. See ‘Human Rights may be Limited’ for further explanation.
The rights to protection of families and children may be engaged:
- when the Department of Housing and Public Works is making decisions and applying for orders about public housing, including entering into tenancy agreements, eviction and warrant of possession decisions
- in the course of hearing and sentencing proceedings for children and when considering applications for bail and detention decisions for children
- during child protection proceedings, including in determining what will fall within the definition of a ‘family’.
These examples have been adapted from Australian cases. They are provided by way of example only, and are not a substitute for legal advice.