Human Rights Act 2019

The Act directly affects every individual in Queensland, who are stated to "have" the rights in Part 2 (s 11(1)). Corporations do not have human rights (s 11(2)). The primary duty-bearers are "public entities" as defined in s 9. This definition is deliberately broad and functional. It includes government entities under the Public Sector Act 2022 s 276, public service employees, the Queensland Police Service, local governments, councillors, local government employees, Ministers, entities established under an Act when performing functions of a public nature, portfolio committee members acting in an administrative capacity, entities performing public functions for the State or another public entity (including under contract), staff and executive officers of public entities, and entities prescribed by regulation. It also expressly includes registered NDIS providers performing public functions in the State and non-State police officers when acting as special constables or exercising police powers.

Exclusions are equally important: the Legislative Assembly and persons performing functions in connection with Assembly proceedings are excluded except when acting in an administrative capacity; courts and tribunals are excluded except in administrative capacity; non-State schools are not public entities merely because they educate students; and entities may be prescribed by regulation as excluded. Section 10 supplies a non-exhaustive list of factors for determining whether a function is "of a public nature": statutory conferral, connection to government functions, regulatory character, public funding, and government-owned corporation status. Specific examples given include operation of corrective services facilities, provision of emergency services, public health, public disability services, public education, public transport, and social housing.

Public entities are therefore the main addressees of the s 58 obligation. However, the Act also affects Parliament (through scrutiny and override provisions), courts and tribunals (through the interpretive rule in s 48, referral jurisdiction in s 49, and administrative functions), the Supreme Court (declaration of incompatibility jurisdiction under s 53), the Attorney-General (intervention, notice, tabling and response obligations), the Queensland Human Rights Commission (complaints handling, reviews, education and reporting), and portfolio committees (scrutiny and reporting roles). Ministers preparing statements of compatibility or human rights certificates are directly regulated.

Because the interpretive rule applies to all statutory provisions, the Act indirectly affects every person who is subject to, or seeks to rely on, Queensland legislation. Private entities that contract with public entities to perform public functions may be caught as public entities while performing those functions. The Commission’s power to review policies, programs and practices (s 61(c)) and to request information for its reports (s 98) brings a wide range of public sector bodies within its oversight. Finally, the obligation on certain public entities to include human rights information in their annual reports (s 97) affects all entities subject to Financial Accountability Act 2009 s 63 reporting requirements.

Rights of individuals: Part 2 Division 2 lists civil and political rights largely drawn from the ICCPR. These include recognition and equality before the law (s 15, with positive measures for disadvantaged groups not constituting discrimination), the right to life and not to be arbitrarily deprived of it (s 16), protection from torture, cruel, inhuman or degrading treatment, and non-consensual medical experimentation (s 17), freedom from slavery, servitude and forced labour (s 18, with detailed exceptions for lawful detention, work and development orders, emergencies and normal civil obligations), freedom of movement and residence (s 19), freedom of thought, conscience, religion and belief including manifestation (s 20, with a prohibition on coercion), freedom of expression including seeking, receiving and imparting information in any medium (s 21), peaceful assembly and freedom of association including trade unions (s 22), taking part in public affairs, voting and access to public office without discrimination (s 23), property rights (s 24), privacy and reputation (s 25), protection of families and children including birth registration (s 26), cultural rights generally (s 27) and distinct cultural rights of Aboriginal and Torres Strait Islander peoples (s 28, including rights to maintain identity, language, kinship, connection to country and to be free from forced assimilation). Liberty and security rights (s 29) contain detailed guarantees on arrest, detention, prompt judicial review, presumption of innocence, minimum guarantees in criminal proceedings, rights of children in the criminal process, double jeopardy (s 34) and non-retrospectivity (s 35). Division 3 adds economic, social and cultural rights to education (s 36) and health services, including emergency treatment (s 37).

Duties on public entities: The cardinal duty is s 58(1). It is unlawful to act or decide incompatibly with human rights or to fail to give proper consideration to relevant rights. Proper consideration is not a mere box-ticking exercise; s 58(5) requires identification of affected rights and an assessment of compatibility. The duty is subject to the statutory-imperative defence in s 58(2) and the religious-body exception in s 58(3). Acts of a private nature are exempt (s 58(4)). Importantly, breach does not invalidate the act or decision, nor create an offence (s 58(6)).

Legislative duties: Members introducing Bills must prepare statements of compatibility (s 38). Responsible Ministers must prepare human rights certificates for subordinate legislation (s 41). Parliament may make override declarations but is exhorted to do so only in exceptional circumstances (s 43(4)).

Interpretive duty: All courts and tribunals must interpret statutory provisions compatibly with human rights to the extent possible consistent with purpose (s 48(1)-(2)). This is a strong but purpose-constrained rule. International and comparative jurisprudence is admissible (s 48(3)).

Commission duties: The Commission must deal with complaints (s 61(a)), promote understanding, provide education, review laws and policies when requested, and report annually (s 91). It has information-gathering powers (s 78) and may conduct conciliation (s 79).

Complainant rights: Individuals (or their agents) who believe a public entity has contravened s 58 may complain after first raising the matter with the entity and allowing 45 business days (s 65). They are entitled to notice, an opportunity to participate in conciliation, and, if unresolved, a report. They may seek relief or remedy for unlawfulness under s 58 in addition to other available grounds (s 59(2)), although damages are barred for the s 58 ground alone (s 59(3)).

The Act is not primarily criminal. The only offence provisions are collateral: failure to comply with a direction to give information under s 78 (enforceable as a court order), failure to comply with a direction to attend conciliation (s 81), breach of an anonymity direction (s 100, 35 penalty units for individuals, 170 for corporations), and the 100 penalty unit maximum for failure to provide information requested for annual reports under s 98(3).

Enforcement of the s 58 obligation is through civil proceedings. Section 59(1)-(2) provides that if a person could seek relief or remedy on any other ground of unlawfulness, they may also rely on the ground of unlawfulness arising under s 58, even if they would not succeed on the other ground. However, damages may not be awarded on the s 58 ground (s 59(3)). Other remedies—judicial review, declarations, injunctions, stays, exclusion of evidence—remain available (s 59(4)). Proceedings for offences under the Act are governed by the procedure in Anti-Discrimination Act 1991 s 226 (s 101).

The interpretive rule in s 48 is enforced through ordinary litigation; a party may raise incompatibility and invite the court to interpret the provision compatibly. If the Supreme Court cannot do so, it may make a declaration of incompatibility (s 53), which has no legal effect on validity but triggers parliamentary reporting obligations (ss 55-57).

The Commission’s powers are largely facilitative. It may direct attendance at conciliation or production of information, and file the direction in a court to make it enforceable as an order (ss 78, 81). Refusal to deal with a complaint is reviewable only on ordinary administrative law grounds; the Act does not create a statutory right of review. Annual reporting obligations on public entities (s 97) are enforced through the ordinary accountability mechanisms applicable to those entities under the Financial Accountability Act 2009.

Override declarations and declarations of incompatibility are political rather than legal sanctions. An override declaration suspends the Act’s application for up to five years (s 45). A declaration of incompatibility requires a ministerial response and portfolio committee report but does not invalidate the law (s 54).

The Act is expressly intended to operate alongside, and not to abrogate, existing rights (s 12). It therefore sits atop the existing statute book and common law. The interpretive rule in s 48 applies to all statutory provisions, including the Act itself, but cannot override clear statutory purpose. Where another statute expressly authorises conduct that would otherwise breach s 58, the defence in s 58(2) will usually apply.

Specific interaction provisions exist. The Act does not affect laws relating to termination of pregnancy (s 106). Native title is preserved and the Act must be interpreted consistently with the Native Title Act 1993 (Cth) (s 107). The Commission may deal with a human rights complaint under the Anti-Discrimination Act 1991 if it considers that Act more appropriate, and the complaint is then treated as having been accepted under that Act (s 75). Referral arrangements with the Ombudsman, Health Ombudsman, Crime and Corruption Commission, Information Commissioner and NDIS Commissioner are contemplated (ss 66, 73, 74).

The Human Rights Act 2019 amended the Corrective Services Act 2006 and the Youth Justice Act 1992; the first statutory review was required to consider whether those amendments are operating effectively (s 95(4)(c)). The interpretive rule does not apply to provisions subject to an override declaration (s 48(5)). A declaration of incompatibility cannot be made in respect of an overridden provision (s 53(3)).

In federal jurisdiction, the Act cannot bind the Commonwealth except to the extent of Queensland’s legislative power (s 5). However, registered NDIS providers performing public functions in Queensland are public entities (s 9(2)). Commonwealth laws are not subject to the scrutiny provisions, although non-Queensland laws may be referred to a portfolio committee (s 40).

The Act interacts with the Judicial Review Act 1991 and the Uniform Civil Procedure Rules 1999 by expanding the grounds on which relief may be sought (s 59(4)). It does not, however, create a freestanding right to damages for breach of s 58.

The text supplied shows amendments up to 2023. The most significant textual change was the 2022 amendment (2022 No. 34 s 365 sch 3) updating the definition of "government entity" in s 9(1)(a) to refer to the Public Sector Act 2022 s 276 rather than its predecessor. This was part of the broader public sector reform that replaced the Public Service Act 2008. The change was technical but ensures the human rights obligation tracks the current machinery of government.

In 2020, s 41 was amended (2020 No. 15 s 81B) to add subsections (4A) and (4B) creating an exemption from human rights certificates for certain proclamations and prescribed instruments, with a safeguard that the Minister may only recommend prescription if satisfied the instrument will not limit human rights. This change responded to practical difficulties with the breadth of the original certificate requirement while preserving the Act’s protective purpose.

The 2023 amendment to s 52 (2023 No. 23 s 85) updated the list of courts to which the notice requirement applies, reflecting court structure changes.

These amendments have been largely machinery or clarificatory. The first statutory review under s 95 was completed in 2024 (after the 1 July 2023 deadline) and examined whether additional rights (economic, social, cultural, child, disability and women’s rights) should be included, whether a damages remedy should be available, and the effectiveness of the corrective services and youth justice amendments. The review recommended against immediate expansion of the rights list but suggested further consideration of economic, social and cultural rights in the second review due after 2027 (s 96). No legislative response had been enacted at the time of writing.

Because the Act is relatively recent, superior court jurisprudence remains developing. The leading case on the interpretive obligation is Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, in which Martin J considered the interaction of the Act with the Corrective Services Act 2006 regime for restrictive confinement. His Honour held that the interpretive rule in s 48 requires a court to prefer a rights-compatible construction if one is available that is consistent with statutory purpose, but does not permit rewriting legislation. The Court also examined the s 58 obligation in the context of a prisoner’s placement in a maximum-security unit, emphasising that "proper consideration" requires genuine engagement with the relevant rights rather than formulaic recitation.

In Attorney-General for Queensland v Sri & Ors [2022] QSC 25 the Supreme Court considered whether the failure to give proper consideration to the right to peaceful assembly and freedom of association invalidated a decision to refuse approval for a protest during COVID-19 restrictions. The Court held that the obligation under s 58(1)(b) had been breached but, applying s 58(6), the decision was not invalid. The case illustrates the limited remedial consequences of a s 58 breach.

The declaration of incompatibility jurisdiction has been invoked sparingly. In Ingram & Anor v Queensland Police Service [2023] QSC 18 the Court declined to make a declaration in respect of provisions of the Peaceful Assembly Act 1992 on the basis that a compatible interpretation was available under s 48. The Court emphasised that a declaration under s 53 is a measure of last resort and should not be made if a compatible construction is possible.

Controversies have centred on three areas. First, the absence of a damages remedy has been criticised by human rights advocates as weakening the Act’s practical force; the 2024 review declined to recommend its introduction. Second, the breadth of the "public entity" definition and the functional test in s 10 have created uncertainty for contractors and non-government organisations delivering publicly funded services. Third, the use of override declarations has been politically contentious; although none has yet been made in respect of a human rights issue, the mechanism’s existence is seen by some as undermining the Act’s normative force.

The Commission’s complaint-handling role has also generated debate. In its 2022-23 annual report the Commission noted a steady increase in complaints, particularly concerning treatment in prisons, police conduct and child protection decisions. Critics argue the 45-business-day precondition and the inability to compel conciliation outcomes limit accessibility for vulnerable complainants.

Most practitioners still treat human rights arguments as an afterthought rather than a primary lens. The s 48 interpretive obligation is not a general power to read down statutes; it is constrained by statutory purpose. Courts have repeatedly emphasised that if the ordinary meaning is incompatible and no other meaning consistent with purpose is available, the incompatible meaning must be applied and a declaration sought. The "purpose" inquiry is therefore decisive and often dispositive.

Section 58(2) is wider than many realise. If a statute requires the decision (even if it does not expressly forbid a rights-compatible alternative), the public entity is protected. The defence has been read broadly in cases involving correctional management where legislation leaves little room for discretionary judgment.

"Proper consideration" under s 58(1)(b) does not require the decision-maker to cite the Act or use the language of s 13. However, it does require identifiable intellectual engagement with the relevant rights and the impact of the decision upon them. A template paragraph that merely lists the rights and asserts compatibility will not suffice. Conversely, over-elaborate human rights impact statements can be used against the decision-maker if they reveal that irrelevant rights were weighed or that the balancing exercise miscarried.

The complaint pathway contains several procedural tripwires. The 45-business-day precondition is mandatory unless the Commissioner accepts the complaint earlier on exceptional-circumstances grounds. A complainant who bypasses the public entity’s internal process risks the complaint being refused under s 70(1)(c). Once a complaint is referred to another entity (Ombudsman, Health Ombudsman, CCC, Information Commissioner) the Commission’s jurisdiction is exhausted unless the matter is referred back.

Declarations of incompatibility trigger a six-month response obligation on the Minister (s 56). However, the Minister is not obliged to agree with the Court or to amend the legislation. The political accountability mechanism has so far produced only polite acknowledgments rather than substantive reform.

Finally, many public sector officers remain unaware that their day-to-day administrative decisions—granting or refusing licences, allocating social housing, deciding prison classifications, approving protests—are subject to the s 58 duty. The Act’s educative purpose has not yet fully permeated middle management. Compliance audits by the Commission have repeatedly found that "human rights" is still treated as a legal checkbox rather than an active decision-making discipline.

Public entities should embed human rights into every decision-making framework. The starting point is a human rights policy that identifies the rights most likely to be engaged by the entity’s functions and provides decision-makers with a structured compatibility checklist. That checklist should require the decision-maker to (1) identify the right or rights engaged, (2) determine whether the decision limits the right, (3) assess whether any limit is reasonable and demonstrably justifiable by reference to the s 13(2) factors, and (4) record the reasoning in sufficient detail to demonstrate genuine consideration.

For high-volume decision-makers, template compatibility assessments calibrated to the specific statutory power are essential. Training must be role-specific: a corrective services officer assessing a maximum-security placement needs different guidance from a local government planner considering a development application that affects cultural heritage. Annual reporting under s 97 should not be an after-the-fact aggregation but the product of systematic data collection from the compatibility assessment process.

When preparing statements of compatibility or human rights certificates, the responsible Minister or member must engage with the actual rights engaged by the Bill and, if incompatibility is unavoidable, explain why the limit is justified. Generic assertions that the Bill is "reasonable and proportionate" are insufficient. Portfolio committees expect detailed analysis; early consultation with the Commission improves the quality of the statement and reduces the risk of adverse committee comment.

Organisations that contract with public entities to deliver public services should require their subcontractors to adopt compatible policies and should themselves conduct compatibility assessments when performing the contracted functions. The functional test in s 10 means that a private provider operating a correctional facility or providing public health services will be treated as a public entity while performing those functions.

For legal practitioners, human rights arguments should be raised early. In judicial review proceedings, plead both traditional grounds and, in the alternative, failure to give proper consideration under s 58(1)(b) or substantive incompatibility under s 58(1)(a). In statutory interpretation cases, always analyse whether a rights-compatible construction is available before conceding that the ordinary meaning must prevail. When advising on policy, present options ranked by degree of rights interference and identify the least restrictive means that achieves the statutory purpose.

The Commission’s conciliation process is confidential and without prejudice (s 86). Parties should approach it as a genuine negotiation rather than a dress rehearsal for litigation. A well-drafted deed of settlement can include non-monetary remedies (policy changes, apologies, training) that address systemic issues the Commission is likely to highlight in any s 88 report.

Finally, all entities should maintain a human rights register that records compatibility assessments, complaints received, outcomes, and changes made to policies as a result of human rights considerations. This register serves both as an audit trail for annual reporting and as evidence of a genuine human rights culture should the Commission or a court later examine the entity’s conduct. Regular internal audits, preferably by staff independent of the decision-making area, are the most effective way to ensure that the Act moves from aspirational statute to lived organisational reality.