Last updated 1 December 2020
People can complain to the Queensland Human Rights Commission (QHRC) about a breach of their human rights and can add human rights arguments to other legal actions they may bring against the public entity.
1 Find out what avenues exist to review, appeal or complain about a decision
Before making a complaint, the person should first ensure they understand all possible ways to review, appeal or complain about the decision.
This may include recourse under the Human Rights Act 2019 (Qld) (Human Rights Act), but is likely to extend to other avenues such as internal and external complaint avenues and appealing the decision in a court or tribunal. See ‘Other avenues of review, appeal or complaint’ above.
The person should then, with knowledge of any applicable time limits, decide whether they wish to use these other avenues before, alongside or after making a Human Rights Act complaint.
Table 3: Some examples of possible complaint processes.
Example 1: A person wants to make a discrimination complaint against police.
- The person writes to police about the Human Rights Act breach.
- The person waits 45 business days, and then complains about both the Human Rights Act breach and discrimination to the QHRC within one (1) year of the discrimination occurring.
Example 2: A student is excluded from a public school three weeks before significant exams.
- The student writes to the Department of Education, asking them to review the decision under the relevant education law, policy and Human Rights Act.
- The student simultaneously makes a Human Rights Act complaint to the QHRC. The QHRC is satisfied exceptional circumstances exist, and accepts the complaint before 45 days has passed since the student wrote to the Department of Education.
- The student has made both the Department of Education and QHRC complaints within one (1) year of the exclusion decision.
Example 3: An accused person wishes to complain about human rights violations during an arrest.
- The accused person makes arguments during court proceedings for the criminal matter, for example that the arrest was unlawful.
- The charge is dismissed and the accused person then makes a Human Rights Act complaint to the QHRC within one (1) year of the arrest.
2 Complaint to the public entity
If a person believes that a Queensland public entity has breached the Human Rights Act, they must first make a complaint directly to the public entity and allow 45 business days to respond.
In exceptional circumstances, the QHRC may accept an urgent complaint before 45 business days has passed since the complaint was made to the public entity. However, the person will still need to have complained to the public entity first.
3 Complaint to the Queensland Human Rights Commission
If the person is unable to resolve the complaint directly with the public entity, they can then lodge a complaint with the QHRC.
A complaint must be lodged with the QHRC within one (1) year of the act or decision being complained about.
The QHRC is empowered to resolve disputes between individuals and public entities where a breach of human rights is alleged, and exercise other functions under the Act.
The QHRC must give reasonable help to a complainant who needs help to put the complaint in writing, may make preliminary enquiries to decide how to deal with the complaint and direct a public entity to give relevant information about the complaint.
The QHRC must only refuse to deal with a complaint if the complaint is frivolous, trivial, vexatious, misconceived or lacking in substance.
With no separate and enforceable cause of action under the Human Rights Act, the QHRC complaints mechanism will be the most important safeguard for making sure public entities are held accountable for breaches of human rights in Queensland.
4 Conciliation Conference at the Queensland Human Rights Commission
If the QHRC accepts a human rights complaint, it may conduct a conciliation conference to try and resolve the complaint in a way that is informal, quick and efficient.
This dispute resolution model aims to resolve disputes between the person making the complaint and the public entity without enforcement in a court or tribunal.
The QHRC can direct any person to take part in the conciliation conference, and the complainant must attend aside for in limited circumstances such as where they are a child or person with impaired capacity. The QHRC may consent to a support person or representative attending with the complainant.
If the complaint is not resolved at conciliation, the QHRC can publish deidentified reports about the matters raised and recommend actions it considers should be taken to act compatibly with human rights.
5 Limited enforcement mechanism
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.
However, where the person can bring another sort of legal action against the public entity they may include Human Rights Act arguments in that legal action.
For example, where a discrimination complaint remains unresolved after a conciliation conference in the QHRC, the complainant may bring the discrimination complaint to the Queensland Civil and Administrative Tribunal. Human rights arguments may also be raised during these proceedings.
There is no right to seek monetary damages either during the QHRC complaints process or in later legal proceedings for contravention of the Human Rights Act.
If the complainant has no other grounds for legal action against the public entity aside from a Human Rights Act complaint, then the QHRC conciliation conference will be the end of the complaint process.