Last updated 1 December 2020
Interpreting the law
Courts and tribunals must, as far as possible and while continuing to fulfil their purpose, interpret laws in a way that is compatible with human rights. If this is not possible, then laws must be interpreted 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.
Courts and tribunals 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.
Courts and tribunals may also consider human rights, and grant relief or remedy (apart from monetary damages) for breach of human rights in some limited circumstances.
There is no direct right to bring a complaint about a Human Rights Act 2019 (Qld) (Human Rights Act) breach before a court or tribunal. A Human Rights Act argument can only be brought if the person has separate grounds to bring legal proceedings against the decision of a public entity (e.g. where a person claims the public entity acted unlawfully by breaching a law or exceeding the lawful exercise of power).
Where a person can bring legal proceedings against the public entity, they may be able to add an argument that the public entity has also breached the Human Rights Act. This is commonly known as the Human Rights Act complaint ‘piggybacking’ another legal action.
Table 2: Some examples of legal proceedings that may be brought against a public entity, and may be piggybacked by a Human Rights Act argument.
Example 1: A decision by Blue Card Services not to issue a positive notice for a blue card.
- The decision by Blue Card Services may be reviewed in the Queensland Civil and Administrative Tribunal (QCAT).
- QCAT will consider the application of the Working with Children (Risk Management and Screening) Act 2000 (Qld) during the review. The person may argue that Blue Card Services also contravened the Human Rights Act during the QCAT proceedings.
Rights that may be relevant include the right to privacy and reputation (s 25 Human Rights Act) and the right not to be tried or punished more than once (s 34 Human Rights Act).
Example 2: A decision by the Office of Fair Trading to cancel a letting agent licence after the licence holder is convicted of criminal charges.
- The decision by the Office of Fair Trading may be judicially reviewed in the Supreme Court.
- Judicial Review is concerned with whether the government has the power to do an act or make a decision, and whether the power has been lawfully exercised. See the Judicial Review chapter of the Queensland Law Handbook for a further explanation.
- Judicial review is an example of the Supreme Court exercising supervisory jurisdiction for example by granting a declaration against a public entity like the Office of Fair Trading.
- The Supreme Court will consider the Property Occupations Act 2014 (Qld) during the judicial review. The person may also be able to argue that the Office of Fair Trading contravened the Human Rights Act.
Rights that may be relevant include the right not to be tried or punished more than once (s 34 Human Rights Act).
Example 3: A decision by police not to provide an Auslan interpreter to a victim with a hearing impairment.
- The victim may have grounds for a discrimination complaint under the Anti-Discrimination Act 2019 (Qld) (Anti-discrimination Act).
- A complaint that the public entity has discriminated against the person contrary to the Anti-discrimination Act gives a direct cause of action against a public entity. This includes a right to complain to the Queensland Human Rights Commission (QHRC) and, if the complaint is unresolved, to the Queensland Civil and Administrative Tribunal (QCAT).
- QCAT and the QHRC will apply the Anti-discrimination Act to determine if discrimination has occurred. The person may also be able to argue that police acted unlawfully under the Human Rights Act during the QHRC and QCAT complaint.
Rights that may be relevant include the right to recognition and equality before the law (s 15 Human Rights Act) and the right not to be treated in a cruel, inhuman or degrading way (s 17 Human Rights Act).
Example 4: A decision by the Department of Housing and Public Works to apply for a warrant of possession from QCAT, to allow the eviction of a tenant from public housing.
- The tenant may object to and appeal the warrant of possession in QCAT. This is a statutory appeal as it is allowed under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (RTR Act).
- During QCAT proceedings, QCAT will consider the application of the RTR Act. The tenant may also be able to argue that it would be contrary to the Human Rights Act to grant the warrant of possession.
Rights that may be relevant include the right to privacy and reputation (s 25 Human Rights Act) and right not to be treated in a cruel, inhuman and degrading way (s 17 Human Rights Act).
Example 5: An application to the Supreme Court to exclude evidence improperly obtained by police.
- The Supreme Court has an inherent jurisdiction to grant a stay or exclude evidence.
- The Supreme Court is likely to apply the Police Powers and Responsibilities Act 2000 (Qld) and the Evidence Act 1977 (Qld) in deciding whether to exclude the evidence. The applicant may also make arguments about the unlawfulness of the police actions under the Human Rights Act.
Rights that may be relevant include the right to privacy and reputation (s 25 Human Rights Act) and right to freedom of movement (s 19 Human Rights Act).
Where a court or tribunal finds that the public entity has acted contrary to their obligations under the Human Rights Act, the court or tribunal may grant a relief or remedy on the grounds that the public entity has breached the Human Rights Act. However, there is no right to seek monetary damages (compensation) for the human rights breach.
Acting in an administrative capacity
The Human Rights Act applies directly to a court or tribunal where it is acting in an administrative capacity.
A court or tribunal exercising administrative, rather than judicial power, is a public entity. It will be obliged to act and make decisions in a way that is compatible with human rights, and to properly consider human rights relevant to the decision.
Acting in an administrative capacity includes a court or tribunal undertaking administrative tasks and making administrative decisions.
For a tribunal, this may include:
- exercising merits review jurisdiction where the tribunal reconsiders the facts and law of a public entity decision for example blue card applications and right to information requests
- hearing and determining some statutory applications such as guardianship appointments
- determining professional registration matters for example disciplinary and licensing decisions for health practitioners, teachers, legal practitioners and other professionals.
For a court, this may include:
- referring individuals to special courts for example the Murri Court or Queensland Drug and Alcohol Court
- a magistrate conducting committal proceedings to decide if there is enough evidence against an accused person charged with a serious criminal offence to commit them to trial in a higher court
- an individual judicial officer issuing a warrant.
For both courts and tribunals, it may also encompass court processes and procedures (e.g. registry functions such as arranging interpreters and listing matters) as well staffing matters (e.g. hiring staff, adopting and applying policies and procedures).
Acting in a judicial capacity
The Human Rights Act also places an obligation on courts and tribunals to enforce, directly, the human rights that relate to court proceedings when acting in a judicial capacity.
This means that a court or tribunal, when making decisions or orders about the outcome of a legal matter, must act compatibly with human rights relevant to the proceeding.
Courts in Victoria, under a similar provision of the Charter of Human Rights and Responsibilities Act 2006 (ACT), have been required to apply human rights, when exercising the following judicial functions:
- hearing bail applications
- conducting sentencing hearings
- accommodating self-represented parties
- reviewing mental health treatment orders
- conducting child protection proceedings
- making suppression orders.
Referral to the Supreme Court
A question of law that relates to the application of the Human Rights Act, or a question of interpretation of a law in accordance with the Human Rights Act, may be referred to the Supreme Court.
Any party to the proceeding may apply to have the question referred to the Supreme Court, and the court or tribunal can make the referral if considered appropriate.
Once referred, the court or tribunal must not make any decisions while the referral is pending or proceed in any way that is inconsistent with the Supreme Court’s decision.
Declarations of incompatibility
The Supreme Court and Court of Appeal are empowered to make a ‘declaration of inconsistent interpretation’ if it considers that it is not possible to interpret a law consistently with human rights.
This opens a dialogue between the court and parliament, alerting parliament to problems in the legal system.
A declaration may be made where a question is referred to the Supreme Court (see ‘Referral to the Supreme Court’ above) or a question of law arises in proceedings in the Supreme Court or Court of Appeal.
The QHRC and the Attorney-General must be notified and may make submissions when the Supreme Court is considering making a declaration of inconsistent interpretation.
A declaration of inconsistent interpretation does not affect the validity, operation or enforcement of the law or give rise to any legal right or civil cause of action.