Last updated 1 December 2020
Section 23 of the Human Rights Act 2019 (Qld) (Human Rights Act) confers the right to take part in public life in Queensland. This is an integral component of the democracy, which relies on the participation of all persons in governance.
The right to take part in public life creates two classes of rights holders—every person in Queensland and every eligible person in Queensland.
Subsection 23(1) confers the broader right to participation and protects the right of all people in Queensland, regardless of citizenship, to participate in public affairs. What constitutes public affairs is not defined in the Human Rights Act, but it is likely to include all features of public administration including direct participation in public consultations, debates and assemblies and indirect participation exercised through freely chosen representatives when governing and policy decision making.
Subsection 23(2) protects the right of eligible persons to vote. This itself has two limbs. Subsection 23(2)(a) contains the right to elect and be elected. And once elected, subs 23(2)(b) protects the rights of eligible persons to access, on general terms of equality, the public service, including those elected to public office.
Subsection 23(2) contains internal limitation. It protects the rights of eligible persons to vote, be elected and have access to the public service.
Limitations apply to voting and eligibility criteria to be elected in Queensland. Voting eligibility criteria are dependent on the Electoral Act 1992 (Qld) where children, certain prisoners and non-Queensland residents are not permitted to vote. Additionally, eligibility requirements apply to those who wish to be elected including, for example, at the state level where the person must be 18 years old, an Australian citizens and resident in an electoral district for at least one month before nominating for election.
The right to take part in public life will also 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 right to taking part in public life may be engaged:
- when the Queensland Civil and Administrative Tribunal is exercising its review jurisdiction in relation to professional conduct complaints (e.g. in relation to registered psychologist, solicitor or health practitioner, where the complaint relates to the conduct of that professional in their public life)
- during decisions by public entities when complying with legislative or policy mandated community consultation (e.g. a decision prohibiting a ratepayer from asking questions during local council proceedings due to time constraints)
- when considering whether there has been procedural fairness during public participation in decision making by a public entity (e.g. the ability to appear and present submissions during planning decisions).
These examples have been adapted from Australian cases. They are provided by way of example only, and are not a substitute for legal advice.