Last updated 1 December 2020
What is a public entity
The Human Rights Act 2019 (Qld) (Human Rights Act) places obligations on public entities. Public entities are ‘in and for Queensland’ and encompass government agencies and employees. Public entities include state government departments, local councils, state schools, police and non-government organisations and businesses performing a public function.
Some individuals or agencies will always be a public entity under the Act. These are:
- a government entity as defined by s 24(1) of the Public Service Act 2008 (Qld):
- a government department or part thereof
- a public service office or part thereof
- an agency, authority, commission, corporation, instrumentality, office or other entity established under an Act or under state authorisation for a public or state purpose, or part thereof
- another entity declared under Regulation to be a government entity, or part thereof
- a registry or other administrative office of a court
- a public service employee
- the Queensland Police Service
- a local government, councilor and employee of local government
- a minister
- unless otherwise described, a staff member or executive officer of a public entity
- an entity prescribed by Regulation to be a public entity
- a non-state police officer brought to Queensland and appointed or authorised to act as a police officer in Queensland to assist in responding to a terrorist act under the Police Service Administration Act 1990 (Qld)
- an entity that has voluntarily assumed that status under the Human Rights Act.
Some individuals or bodies will only be a public entity when performing functions of a public nature:
- an entity established under an Act when performing functions of a public nature
- an entity whose functions are of, or include, a public nature when performing the functions for the state or another public entity
- a registered provider of supports or a registered NDIS provider under the National Disability Insurance Scheme Act 2013 (Cth), when performing functions of a public nature in the state.
The Human Rights Act also stipulates certain functions as being of a public nature such as:
- operation of a corrective services facility or place of detention
- provision of emergency services, public health services, public disability services, public education (including tertiary and vocational education), public transport and housing services by a funded provider or the state.
Otherwise, the assessment of whether a function is public in nature will be on a case-by-case basis, focusing on the function, rather than the entity. The Human Rights Act provides a non-exhaustive list of relevant factors that may be considered including whether the function is conferred under statute (s 10(1)(a) Human Rights Act), the entity is publicly funded to perform it (s 10(1)(d) Human Rights Act) and whether the function is of a regulatory nature (s 10(1)(c) Human Rights Act).
Some entities will only be considered public entities when acting in an administrative capacity:
- parliament, or a person performing functions in connection with proceedings in the Assembly
- a court or tribunal.
The Human Rights Act expressly excludes the following from obligations as public entities:
- A public entity that acts in accordance with a law that does not permit the public entity to act or decide differently, even where it would be incompatible with human rights.
- A body established for a religious purpose where the act or decision is made in accordance with the doctrine of the religion and is necessary to avoid offending the religious sensitivities of the people of the religion. This mirrors the exemption in the Anti-Discrimination Act 1991 (Qld) (Anti-discrimination Act).
- A decision of a private nature for example a decision made by a public entity employee outside of work.
- An entity may also be prescribed by the Human Rights Regulation 2019 (Qld) (Human Rights Regulation) not to be a public entity.
Under the Human Rights Act, public entities must act or make a decision in a way that is compatible with human rights and give proper consideration to relevant human rights when making decisions.
Section 58(1) of the Human Rights Act says it is unlawful for a public entity to:
- to act or make a decision in a way that is not compatible with human rights
- in making a decision, fail to give proper consideration to a human right relevant to the decision.
This section is the key operative provision of the Human Rights Act and places both substantive and procedural obligations on public entities.
The substantive obligation is that the action or decision of the public entity must not limit the human right or, if it does, must only do so to the extent that is reasonable and justified in accordance with the Human Rights Act.
As to the procedural requirement, giving proper consideration to a relevant human right would include identifying the human right that may be affected, and considering whether the decision would be compatible with that human right. Public entities will be required to:
- understand in general terms the rights that may be relevant
- establish whether the rights will be interfered with by the decision
- seriously consider the possible impacts of the decision on a person’s human rights (including implications for the person)
- balance or weigh up the competing public and private interests as against protection of the human rights.
Failing to comply with s 58(1) of the Human Rights Act is not an offence and does not invalidate the act or decision. Instead, it gives a person affected by the action or decision the right to make a complaint under the Human Rights Act.