TC Beirne School of Law 17 August 2020
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation
Written by UQ LLB students studying LAWS5124 Human Rights Law in 2019 and 2020
Edited by: Sienna McInnes-Smith, Linden Peacock, Alexia Cuss, Emma Beckinsale, Sophia Horrocks, Clare Foran, Tomea Ryan, Elizabeth Aisi and Christoph Baer
Course Coordinator: Prof Tamara Walsh
Contents
Introduction ...... 7 Section 16: Right to Life ...... 8 The Right to Life in Other Jurisdictions ...... 8 Public Entity ...... 8 A Fundamental Right ...... 9 Negative and Positive Duties ...... 9 The Right not to be Arbitrarily Deprived of Life: The Negative Duty ...... 9 Meaning of ‘Arbitrarily’ ...... 9 Use of Force ...... 10 Capital Punishment ...... 10 Abortion ...... 10 Euthanasia ...... 11 Withdrawal of Treatment ...... 11 The Right to Life: The Positive Duty ...... 11 Laws and Procedures ...... 11 A Duty to Warn ...... 12 Special Duty of Care ...... 12 Health Care and Welfare Rights ...... 13 Duty to Investigate ...... 14 Scope of the Positive Duty ...... 14 Conciliated Outcomes ...... 14 Section 17: Right to Protection from Torture and Cruel, Inhumane or Degrading Treatment ...... 16 Interpretation ...... 16 Torture ...... 16 Cruel, Inhuman or Degrading Treatment ...... 17 Medical or Scientific Experimentation or Treatment ...... 17 Other interpretations ...... 18 Conciliated Outcomes ...... 19 Section 18: Right to Freedom from Forced Work ...... 22 Interpretation ...... 22 Slavery ...... 22 Servitude ...... 23 Forced Labour ...... 24 Conciliated Outcomes ...... 25 Section 19: Freedom of Movement ...... 27 Interpretation ...... 27 Persons ‘Lawfully within Queensland’ ...... 27 When the right may be restricted ...... 28 Comparison with s 92 of the Constitution ...... 29 Conciliated Outcomes ...... 29 Section 20: Freedom of Thought, Conscience, Religion and Belief ...... 31 Interpretation ...... 32 Thought and Conscience ...... 32 Religion and Belief ...... 32 The freedom to have and demonstrate a religion or belief ...... 34 Limitations ...... 36
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Conciliated Outcomes ...... 36 Section 21: Freedom of Expression ...... 38 Interpretation ...... 38 A right to hold an opinion ...... 38 Freedom of Expression ...... 38 What should Queensland do? ...... 41 Conciliated Outcomes ...... 41 Section 22: Right to Peaceful Assembly ...... 43 Interpretation ...... 43 Australian Jurisdictions ...... 43 International Jurisdictions ...... 44 Limitations ...... 45 Conciliated Outcomes ...... 46 Section 23: Right to Take Part in Public Life ...... 47 Interpretation ...... 47 Right to Participation ...... 47 Right to vote ...... 48 The Right to Access the Public Service and Office ...... 48 Conciliated Outcomes ...... 49 Section 24: Property Rights ...... 51 Why have property rights? ...... 51 What type of property? ...... 52 The Positive Right: The Right to Own Property ...... 52 The Negative Right: The Right to Not Be Deprived of Property ...... 53 Meaning of ‘Arbitrarily’ ...... 53 Meaning of ‘Deprived’ ...... 53 Limitations ...... 54 Conciliated Outcomes ...... 54 Section 25: Right to Privacy and Reputation ...... 56 Interpretation ...... 56 Privacy ...... 57 Family and Home ...... 57 Correspondence ...... 58 Arbitrary or Unlawful Interference ...... 58 Reputation Unlawfully Attacked ...... 59 Justifiable Limitations on the Right to Privacy ...... 59 Conciliated Outcomes ...... 60 Section 26: Right to Protection of Families and Children ...... 61 Interpretation ...... 61 Protection of Families ...... 61 Rights of Children in Section 26(2) ...... 63 Rights of Children under Section 26(3) ...... 65 Conciliated Outcomes ...... 65 Section 27: Cultural Rights – Generally ...... 68 Interpretation ...... 68 Cultural Background ...... 68 ‘With a background’ ...... 68
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Parts of culture and limitation by public authorities ...... 69 Conciliated Outcomes ...... 70 Section 28: Cultural Rights – Aboriginal Peoples and Torres Strait Islanders ...... 72 Public Entities ...... 72 Nature of Indigenous Cultural Rights ...... 73 Interpretation of Indigenous Cultural Rights ...... 74 Identity and Cultural Heritage ...... 74 Language ...... 75 Kinship ...... 76 Relationship with Land ...... 77 Environment ...... 77 Assimilation and Destruction ...... 78 Conciliated Outcomes ...... 78 Section 29: Right to Liberty and Security of Person ...... 81 The right to liberty ...... 82 Liberty ...... 82 Limitations of the right ...... 82 Information given to the person under arrest ...... 83 Promptly brought before a court ...... 83 Trial without unreasonable delay ...... 84 Awaiting trial ...... 84 Applying to the court in relation to the lawfulness of detention ...... 85 The right to security of person ...... 85 Inability to perform contractual obligations ...... 86 Conciliated Outcomes ...... 86 Section 30(1): Right to Humane Treatment when Deprived of Liberty ...... 88 Interpretation ...... 88 ‘Treated with Humanity’ and ‘Dignity’ ...... 88 Case Examples ...... 89 Conciliated Outcomes ...... 91 Section 30(2)-(3): Rights of Prisoners on Remand ...... 93 Interpretation ...... 93 ‘Accused person’ or a ‘person detained without charge’ ...... 93 Section 30(2): The Right to Segregation ...... 94 Section 30(2): Limitation of this Right ...... 94 Section 30(3): ‘Appropriate Treatment’ ...... 95 Conciliated Outcomes ...... 96 Section 31: Right to a Fair Hearing ...... 97 Interpretation ...... 97 A Competent, Independent and Impartial Court or Tribunal ...... 97 A Fair Hearing ...... 98 Public Hearing and Public Availability of Decisions ...... 99 Conciliated Outcomes ...... 100 Section 32(2)(i): Right to an Interpreter ...... 101 Interpretation ...... 102 Charged with a Criminal Offence ...... 102 A Minimum Guarantee ...... 102 Qualifications or Quality of the Interpreter ...... 103
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Translation of Documents ...... 103 Conciliated Outcomes ...... 104 Section 33: Rights of Children in the Criminal Process ...... 106 Interpretation ...... 106 Scope ...... 106 Segregation ...... 106 Trial ...... 107 Treatment ...... 107 Conciliated Outcomes ...... 108 Section 34: Right Not to Be Tried or Punished More Than Once ...... 110 Interpretation ...... 110 Application Only in Respect of Criminal Offences ...... 110 Final Conviction or Acquittal ...... 111 Limitations ...... 111 Examples of Operation of the Right ...... 112 Disciplinary Proceedings ...... 112 Post Sentence Detention and Supervision ...... 112 De Novo Hearings and Review ...... 113 Parole Eligibility ...... 113 Other Examples ...... 113 Conciliated Outcomes ...... 114 Section 35: Right to Protection Against Retrospective Criminal Laws ...... 115 The General Prohibition ...... 115 Prohibition of Ambiguous offences ...... 116 Alterations in Penalties ...... 116 Increases in penalties ...... 116 Reduction in penalties ...... 117 Limited to Penalties ...... 117 Exceptions to the Right ...... 117 Conciliated outcomes ...... 118 Section 36(1): Right to Education ...... 119 Interpretation ...... 119 International Law ...... 119 Australian Jurisdictions ...... 119 The Right in Queensland ...... 120 Application ...... 122 Conciliated Outcomes ...... 122 Section 36(2): Right to Vocational Education ...... 124 Interpretation ...... 124 ‘Every person has the right to…’ ...... 125 ‘The right to have access…to further vocational education and training’ ...... 125 ‘…the right to have access, based on the person’s abilities…’ ...... 125 ‘...to further vocational education and training…’ ...... 126 ‘…to vocational education and training that is equally accessible to all’ ...... 127 Limitations ...... 127 Conciliated Outcomes ...... 127 Section 37: Right to Health Services ...... 129
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Interpretation ...... 129 Public Entities ...... 129 Other Jurisdictions ...... 129 The Right to Access Health Services ...... 131 The Right not to be Refused Medical Treatment ...... 134 Limitations on Section 37 Rights ...... 135 Conciliated Outcomes ...... 136
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Introduction
On 7 March 2019, Queensland’s new Human Rights Act 2019 (Qld) received royal assent. The Human Rights Act 2019 (Qld) introduces 23 rights for Queenslanders. Some of them codify existing common law rights, but others are new. The Act has the potential to change the way decisions are made by administrative decision-makers, as public entities will be required to act or make decisions in a way that is compatible with human rights, and give proper consideration to human rights that are relevant to the decision. The Act creates the possibility of obtaining relief or a remedy for human rights breaches by enabling a person to complain that a decision has been made in a way that was not compatible with their human rights, or their human rights were not properly considered, if they have another cause of action available to them. The Human Rights Act 2019 (Qld) is the first of its kind in Australia to create an additional complaints mechanism. An aggrieved person may make a complaint to the Queensland Human Rights Commissioner in relation to a decision or act of a public entity. This creates another avenue by which a person can have their concerns addressed, other than through legal proceedings. There are myriad possible conciliated outcomes – indeed, any outcome that both parties lawfully agree to is possible. What we seek to do in this report is to: • consider how human rights within the Act might be interpreted, drawing on both domestic and international case law, as well as relevant literature; and • speculate on the kinds of conciliated outcomes that parties might seek, and agree to, in respect of each right. The chapters of this report have been written by students enrolled in Human Rights Law at the University of Queensland’s School of Law in semester 2 of 2019. A team of nine volunteer students over two years edited the papers and put together this report. I sincerely thank them for their hard work. These student papers offer interesting insights into what the passing of the Human Rights Act 2019 (Qld) might mean for Queenslanders. I am pleased to make it available to you. Professor Tamara Walsh Course Coordinator, Human Rights Law 17 August 2020
This report is provided free of charge and for research purposes only. It is the responsibility of the user to verify the accuracy, completeness, timeliness, quality or suitability for a particular use of the information provided in this report. The University of Queensland (“UQ”) make no claims, guarantees or warranties about the accuracy, completeness, timeliness, quality or suitability for a particular use of the information provided through this report. In particular, UQ accepts no liability for any loss of damage suffered by the user. UQ disclaims any and all liability for any claims or damages (including without limitation indirect or consequential loss or damage or any loss of damage arising whatsoever out of or in connection with the use of this report) that may result from providing the report or the information within. The user of this information assumes all liability and waives any and all claims or causes of action against UQ for all uses of and reliance on the information. In addition, UQ reserves the right to change the information at any time or remove the information entirely, without notice and in its absolute discretion. If any provision of this disclaimer is, or is found to be, unenforceable under applicable law, that will not affect the enforceability of the other provisions of this disclaimer. By choosing to use this report and the information it contains, you acknowledge and agree to the terms of this disclaimer.
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Section 16: Right to Life
Aoibh Cassidy and Emma Beckinsale
‘16 Right to Life
Every person has the right to life and has the right not to be arbitrarily deprived of life.’
Section 16 of the Human Rights Act 2019 (Qld) (‘HRA’) protects the right to life. This provision consists of two limbs: firstly, it provides that ‘every person has the right to life’ and secondly, it provides for the ‘right not to be arbitrarily deprived of life’.1 The outline below considers how Queensland decision-makers are likely to interpret s 16 and the potential outcomes that complainants may seek through the HRA’s conciliation process. The Right to Life in Other Jurisdictions Section 16 is based on art 6(1) of the International Covenant on Civil and Political Rights (‘ICCPR’).2 In addition to the ICCPR, the right to life is also contained in various other international agreements, including the Universal Declaration of Human Rights,3 the European Convention on Human Rights (‘ECHR’),4 the Convention on the Rights of the Child,5 and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.6 Both the Charter of Human Rights and Responsibilities Act 2006 (Vic)7 and the Human Rights Act 2004 (ACT)8 contain a right to life in terms virtually identical to that in s 16 of the HRA. Human rights legislation in New Zealand,9 the United Kingdom,10 Canada11 and South Africa12 also contain a right to life. Public Entity The right to life may be engaged in situations involving the use of force by a public authority, the delivery of medical treatment by health services, or the death of a person in the care or supervision of a public authority.13 Therefore, public entities that have the potential to impact the right to life include the police, public health services, correctional facilities, services connected to foster care and child protection, and courts or tribunals (acting in an administrative capacity), particularly in relation to coronial inquests.14
1 Human rights Act 2019 (Qld) s 16 (‘HRA’). 2 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 6(1) (‘ICCPR’); Explanatory Notes, Human Rights Bill 2018 (Qld) 3. 3 United Nations Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) art 3. 4 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 2. 5 Convention on the Rights of the Child, opened for signature 20 November 1989, 1566 UNTC 3 (entered into force 2 September 1990) art 6. 6 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, opened for signature 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003) art 9. 7 Charter of Human Rights and Responsibilities 2006 (Vic) s 9. 8 Human Rights Act 2004 (ACT) s 9. 9 New Zealand Bill of Rights Act 1990 (New Zealand) s 8. 10 Human Rights Act 1998 (UK) art 2. 11 Canada Act 1982 (UK) c 11, sch B pt I ('Canadian Charter of Rights and Freedoms') s 7. 12 Constitution of the Republic of South Africa Act 1996 (South Africa) ch 2, s 11. 13 Victorian Equal Opportunity & Human Rights Commission, ‘The Charter of Human Rights and Responsibilities: Section 9 Right to Life’, The Charter – Individual Rights (Fact Sheet, May 2013) 1-2
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A Fundamental Right The drafters of the ICCPR described the right to life as ‘the most fundamental of all rights’.15 It is the ‘most basic, most fundamental and supreme right which human beings are entitled to have’.16 All other human rights depend on the right to life, as an individual cannot enjoy other human rights without it.17 The United Nations Human Rights Committee (‘HRC’) has stressed the importance of the right, stating that it ‘should not be interpreted narrowly’ as it ‘cannot be properly understood in a restrictive manner’.18 Negative and Positive Duties Section 16 of the HRA provides that ‘[e]very person has the right to life and has the right not to be arbitrarily deprived of life’. The right therefore imposes both negative and positive duties on public authorities. The negative duty requires that public authorities must not arbitrarily deprive a person of life.19 The positive duty requires that public authorities must take positive steps to protect people from threats to life.20 International jurisprudence provides that the right to life must be interpreted so as to impose both positive and negative duties on the State and public authorities.21 Further, in its response to an invitation from the United Nations General Assembly to comment on the ICCPR, the Australian Government stated that the right to life consists of two elements, a right not to be killed and a right to ‘some positive provision concerning the right to life which, although not defined in the Covenant or the Universal Declaration, may be assumed to mean the right of every person to preservation and enjoyment of his existence as an individual’.22 The two limbs of s 16 are considered separately below; however, it should be noted that this distinction is somewhat arbitrary in practice, as there is the potential for significant overlap between the two. The Right not to be Arbitrarily Deprived of Life: The Negative Duty Meaning of ‘Arbitrarily’ Under the negative duty imposed by s 16, public entities are prohibited from arbitrarily depriving a person of their right to life. The term ‘arbitrarily’ qualifies this prohibition and leaves much room for interpretation by the courts.23 The inclusion of this term demonstrates that the right to life is not absolute, as it highlights that some deprivations of life may be permissible.24 Indeed, the Explanatory Notes to the Human Rights Bill 2018 (Qld) (‘Bill’) state that ‘[n]ot every action that results in death will be arbitrary’.25 The HRC has emphasised that the concept of arbitrariness is not limited to something that is unlawful, but rather, should ‘encompass the elements of inappropriateness, injustice, absence of predictability and due process of the law’.26 A deprivation of life may be authorised by law and still be arbitrary.27 For example, in
15 Marc Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (Martinus Nijhoff Publishers, 1987) 115. 16 Douglas Hodgson, ‘The Child’s Right to Life, Survival and Development’ (1994) 2 International Journal of Children’s Rights 369, 372. 17 Waseem Qureshi, ‘Legal Exceptions to the Inalienable Right to Life’ (2019) 53 University of San Francisco Law Review 263, 263. 18 Human Rights Committee, General Comment No 6: Right to Life, 16th sess, UN Doc HRI/GEN/1/Rev 1 (30 April 1982) [5]. See also ACT Human Rights Commission, ‘The Right to Life’, Human Rights in Detail (Fact Sheet, June 2010) 3
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Guerrero v Columbia, the HRC held that the use of force by the police could not be justified simply because it accorded with the law.28 Therefore, in determining whether a deprivation of life is arbitrary, Queensland decision-makers are likely to consider factors such as reasonableness, proportionality, necessity and legality.29 Examples of particular applications of the right not to be arbitrarily deprived of life are considered below. Use of Force The right to life will be engaged where public authorities and government officials may use force that results in the deprivation of life.30 For example, police officers, officers at a correctional facility, or healthcare workers may use force against a person who poses a risk to others.31 In its comment on art 6 of the ICCPR, upon which s 16 of the HRA is based, the Committee on Civil and Political Rights indicated that states must implement laws to ‘strictly control and limit the circumstances in which a person may be deprived of his life by [public] authorities’.32 In McCann v United Kingdom, the European Court of Human Rights (‘ECtHR’) held the right to life under art 2 of the ECHR and art 6 of the ICCPR has evolved to the point that lethal force can only be used against a person who poses a lethal threat or a threat to the bodily integrity of others.33 Negligent or reckless use of force resulting in death can also breach s 16. The ECtHR has found that deficiencies in operational planning and control,34 or the failure to adequately train agents, may breach the right to life.35 Gulec v Turkey related to the use of force by police officers who fired guns to disperse protestors, which resulted in the death of one demonstrator.36 The ECtHR found this conduct breached the right to life. The failure to use a less lethal method of crowd control (such as batons, riot shields, water cannons, rubber bullets or tear gas) was ‘incomprehensible and unacceptable’.37 Therefore, the intentional or reckless use of lethal force by public authorities will breach s 16 if it is not reasonable and proportionate in the circumstances. The stringency of the test that Queensland decision-makers will adopt is uncertain, but it could require the use of force to be ‘strictly proportionate’ or ‘absolutely necessary’ in the circumstances.38 Capital Punishment Article 6 of the ICCPR is largely directed at reducing and regulating the use of capital punishment by States.39 However, s 16 of the HRA only replicates the more general art 6(1) of the ICCPR; it does not include any of the additional provisions related to capital punishment.40 As capital punishment was abolished in Queensland in 1922,41 it is likely that the additional provisions of art 6 of the ICCPR were excluded from s 6 of the HRA because they were not considered relevant in a Queensland context. However, capital punishment could be relevant in other contexts. For example, under international law, a State is not entitled to deport an individual if there is a ‘real risk’ they would face the death penalty in their home country.42 Abortion Section 106 provides that the HRA does not affect ‘any law relating to termination of pregnancy or the killing of an unborn child’. Therefore, s 16 will not impact the legality of abortion in Queensland and abortion will not
28 Ibid. 29 Ibid. 30 Victorian Equal Opportunity & Human Rights Commission (n 13) 1. 31 Ibid. 32 Human Rights Committee, General Comment No 6 (n 18) [3]. 33 McCann v United Kingdom (1995) 21 ECHR 97. 34 Gulec v Turkey (Application No 54/1997/838/1044, 27 July 1998); Victorian Equal Opportunity & Human Rights Commission, (n 13) 1. 35 McCann v United Kingdom (1995) 21 ECHR 97. 36 Gulec v Turkey (Application No 54/1997/838/1044, 27 July 1998). 37 Ibid [71]. 38 McCann v United Kingdom (1995) 21 ECHR 97 [148]-[149]. 39 ICCPR (n 2) art 6(2)-(6). 40 Ibid. 41 Queensland Law Reform Commission, A Review of Queensland's Guardianship Laws (Report No 67, September 2010) [783]. 42 Human Rights Committee, Views: Communication 1442/2005 UN Doc CCPR/C/97/D/1442/2005 (23 November 2009) (‘Fong v Australia’).
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constitute a breach of the HRA. As such, the HRA does not require public entities such as hospitals and other health services to alter any procedures or approaches in relation to the termination of pregnancy. Euthanasia Euthanasia, or assisted dying, is not currently legal in Queensland.43 However, the Queensland Government commenced an inquiry into aged care, end-of-life, palliative care and assisted dying in 2018,44 and the report was tabled on 31 March 2020.45 Any proposed legislation regulating voluntary assisted dying in Queensland would require legislative consideration of the HRA, including s 16,46 and courts are obliged to interpret any statutory provisions consistently with human rights to the extent possible.47 However, s 16 is unlikely to prevent the legalisation of euthanasia. Indeed, international jurisdictions have found that the right to life does not extend to or prohibit voluntary assisted dying.48 Withdrawal of Treatment The right to life under s 16 may also be a relevant consideration for hospitals and health services in relation to decisions to withdraw treatment. However, provided these decisions are justified in the circumstances, they are unlikely to breach the right.49 On an international level, the ECtHR held in Lambert v France that the withdrawal of life support does not violate the right to life under art 2 of the ECHR.50 On a domestic level, the common law position is that ‘withholding or withdrawing life-sustaining treatment in accordance with good medical practice is not an offence and the cause of death is classified as the patient’s underlying condition’.51 The Right to Life: The Positive Duty The right to life also imposes a positive duty on public authorities to take steps to protect life and reduce threats to life.52 This is consistent with international jurisprudence. The breadth of the right to life was noted in Olga Tellis v Bobmay Municipal Corporation, where the Supreme Court of India held that the ‘right to life is wide and far reaching’.53 The European Commission on Human Rights has expressed the view that the concept of everyone’s life being protected by the law ‘enjoins the State not only to refrain from taking life intentionally, but further, to take appropriate steps to safeguard life’.54 These sentiments are reflected in the Explanatory Notes, which provides that s 16 ‘reflects the positive obligation on states in art 6(1) of the ICCPR to take positive steps to protect the lives of individuals through, for example, appropriate laws that prohibit arbitrary killing and positive measures to address other threats to life such as malnutrition and infant mortality’.55 The categories and scope of the positive duties likely to arise from s 16 are considered below. Laws and Procedures Section 16 will require the Queensland Government and public authorities to implement laws and procedures directed towards protecting life. Criminal law is one area in which this duty may be particularly relevant.56 The Government must enact appropriate criminal laws to protect the lives of people in Queensland, and
43 Lindy Willmott, Ben White, Christopher Stackpoole, Kelly Purser and Andrew McGee, '(Failed) Voluntary Euthanasia Law Reform in Australia: Two Decades of Trends, Models and Politics' (2016) 39(1) UNSW Law Journal 1, 11. 44 Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee, Parliament of Queensland, Inquiry into aged care, end-of-life and palliative care and voluntary assisted dying (Report, 31 March 2020). 45 Ibid. 46 HRA ss 38, 39. 47 Ibid s 48. 48 Pretty v United Kingdom (2002) 35 EHRR 1. 49 HRA s 13. 50 Lambert v France Application No. 46043/14 Eur. Ct. HR (June 5 2015). 51 See Northridge v Sydney Area Health Services [2000] 50 NSWLR 549; Isaac Messiha v South East Health [2004] NSWSC 1061; Airedale NHS Trust v Bland [1993] AC 789. 52 Explanatory Notes 19. 53 [1985] 3 SCC 545 [2.1]. See also Henry Steiner, International Human Rights in Context: Law, Politics, Morals: Text and Materials, (OUP, 3rd ed, 2008) 323. 54 Association X v United Kingdom Application 7154/75 14 DR 31 (1978) 32. See also J Fawcett, The Application of the European Convention on Human Rights (Clarendon Press, 2nd ed, 1987). 55 Explanatory Notes 19. 56 Victorian Equal Opportunity & Human Rights Commission (n 13) 1.
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implement appropriate policies, procedures and training for police officers and other agents who enforce laws through the use of force.57 This duty may also be relevant to the issues discussed above, such as abortion, euthanasia and withdrawal of medical treatment. While the right to life would not preclude the legality of any of these acts, any regulatory legislation would need to take into account the rights under s 16.58 A Duty to Warn Section 16 is also likely to impose a duty on the Queensland Government and public authorities to warn people of threats, hazards and risks to life,59 potentially including risks relating to fires, floods, chemical spills, hazardous waste, infectious diseases, contamination of food or recall of other items.60 This duty will arise where the public entity knows or ought to know of the risk, and the risk is ‘imminent’ and ‘clearly identifiable’.61 The duty will be owed to the class of people likely to be at risk as a result of the danger.62 Public hospitals and other health services may also have a duty to warn individuals about the risk of contracting an infectious disease.63 For example, where a healthcare worker knows a patient is HIV/AIDS positive and is exposing his or her partner to HIV/AIDS, the worker may have a duty to warn the partner of the risk.64 However, such a duty would need to be balanced with the patient’s right to confidentiality. The common law65 and the International Guidelines on HIV/AIDS and Human Rights66 provide further guidance on how to reconcile this conflict. Special Duty of Care Section 16 is likely to impose a special duty of care on any public authority that has people within its care, custody and control.67 Public authorities subject to the special duty of care include prisons, detention centres, medical facilities and other instances of State care.68 This is consistent with international law, under which positive obligations imposed on public authorities to safeguard life include providing adequate care to a person whose life is known to be at a particular risk,69 taking measures to guard against detainee suicides,70 and protecting the lives of individuals deprived of their liberty by the State.71 In Fabrikant v Canada, the HRC found the right to life required the provision of quality medical care and treatment to prisoners because the State is ‘responsible for the life and well-being of its detainees’.72 The HRC has also found that correctional and detention facilities must implement standards to prevent the spread of diseases and ‘provide appropriate medical treatment to persons who have contracted diseases, either in prison or prior to their detention’.73
57 Ibid. 58 HRA ss 38, 39, 48. 59 Victorian Equal Opportunity & Human Rights Commission (n 13) 1. 60 Ibid; ACT Human Rights Commission (n 18) 9. 61 Budayeva v Russia [2008] ECHR 15339/02 (20 March 2008) [137]; ACT Human Rights Commission (n 18) 9. 62 LCB v United Kingdom (1998) 27 EHRR 212; ACT Human Rights Commission (n 18) 9. 63 Budayeva v Russia (n 61) [137]; ACT Human Rights Commission (n 18) 9. 64 ACT Human Rights Commission (n 18) 9; BT v Oei [1999] NSWSC 1082. 65 BT v Oei (n 64). 66 Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, International Guidelines on HIV/AIDS and Human Rights, 2006, Consolidated Version, HR/PUB/06/9. 67 Victorian Equal Opportunity & Human Rights Commission (n 13) 1. Cf Slaveski v State of Victoria & Ors [2009] VSCA 6. 68 Victorian Equal Opportunity & Human Rights Commission (n 13) 1; ACT Human Rights Commission (n 18) 10. 69 Osman v United Kingdom [1988] ECRR 101; Carmichele v Minister of Safety and Security (2001) 12 BHRC 60. 70 Keenan v United Kingdom (2001) ECtHR 149 [86]. 71 Sarah Joseph, ‘Extending the Right to Life under the International Covenant on Civil and Political Rights: General Comment 36’ (2019) 19 Human Rights Law Review 347, 353. 72 Views: Communication No. 970/2001, UN Doc CCPR/C/79/D/970/2001 (6 Nov 2003) [9.3]. See also ACT Human Rights Commission, Human Rights Audit on the Operation of ACT Correctional Facilities under Corrections Legislation, July 2007, Recommendation 4.2.1. 73 Human Rights Committee, Concluding Observations of the Human Rights Committee: Republic of Moldova, 75th sess, UN Doc CCPR/CO/75/MDA (5 August 2002) [9].
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The right to life may require that special measures of protection be provided to witnesses.74 Courts in the United Kingdom have held that witnesses fall into a special category of ‘vulnerable persons’ and are therefore entitled to be afforded measures of protection additional to those afforded to ordinary members of the public, because they have been exposed to risks by the State.75 This duty will only arise where there is a ‘real and immediate’ risk to the witness’s life76 and must not impose a ‘disproportionate’ or ‘unrealistic burden’ on authorities.77 This duty was considered and applied by the Victorian Supreme Court in the ‘Lawyer X’ proceedings.78 This case indicates that despite the high value placed on the right to life, it is not paramount and may have to be balanced against competing rights. In that case, the Court had to balance the rights of potentially wrongfully convicted persons (such as the right to a fair hearing and criminal procedural rights) against the right to life of the witness and her children, and ultimately determined it was appropriate to publish the witness’s identity.79 Health Care and Welfare Rights There is the potential for significant overlap between the right to life under s 16 and the right to access health services under s 37. In international jurisdictions, different iterations of the right to life have been used to assert a right to access health services or a right to health more generally.80 The Explanatory Notes indicate that the right to health services under the HRA is not intended to encompass a right to the provision of the ‘underlying determinants of health’, such as food, water, social security, housing, a clean environment and insurance.81 South African jurisprudence indicates the right to life should not be used as a vehicle of complaint where the right to health services deals specifically with the issue.82 However, as the right to health services is defined narrowly, the right to life may extend to a more general right to health and other ‘underlying health determinants’. Therefore, s 16 is likely to complement s 37 and require public health authorities to allocate resources appropriately and to only deny life-saving or prolonging treatment in circumstances that are reasonable and demonstrably justified.83 Queensland decision-makers may also extend the right to life to include other ‘underlying health determinants’. Indian courts have construed the right to life as encompassing a right to livelihood,84 nutrition, clothing, shelter85 and education.86 However, New Zealand and Canadian courts have adopted a narrower approach and balanced the right to life with matters of social policy and budgetary constraints.87 The Explanatory Notes refer to an obligation to take positive measures to reduce ‘threats to life such as malnutrition and infant mortality’.88 Therefore, it is likely that s 16 may encompass rights to nutrition and health. However, given that neither s 16 nor the Explanatory Notes stipulate that the right to life is wide enough to encompass other ‘welfare’ rights, it is likely Queensland decision-makers will follow the approach taken in New Zealand and Canada and prioritise budgetary constraints and social policy concerns over rights to housing, clothing, or social security.
74 Van Colle v Chief Constable of Hertfordshire [2007] EWCA Civ 325. 75 Ibid [75]-[76]. 76 Ibid; see also Re Officer L (Respondent) (Northern Ireland) [2007] UKHL 36. 77 Van Colle v Chief Constable of Hertfordshire [2007] EWCA Civ 325 [93]. 78 AB v CD; EF v CD (2018) 362 ALR 1; AB v CD & EF [2017] VSCA 338; AB & EF v CD [2017] VSC 350. 79 Ibid. See also Victorian Equal Opportunity & Human Rights Commission, 2018 Report on the Operation of the Charter of Human Rights and Responsibilities (Report, November 2019) 76. 80 See, eg, Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624; Oyal v Turkey (2010) 51 EHRR 30 [54]; Lopes de Sousa Fernandes v Portugal (2016) 66 EHRR 28 [39]; Yakye Axa Indigenous Community v Paraguay (Merits) (Inter-American Court of Human Rights Series C No 125, 17 June 2005). 81 Explanatory Notes 28. 82 Soobramoney v Minister of Health (Kwazulu-Natal) (1) SA 765 (CC) [15]. 83 See, eg, R v Cambridge Health Authority; Ex parte B [1995] 1 WLR 898 (CA). See also Victorian Equal Opportunity & Human Rights Commission (n 13) 1; HRA s 13. 84 Tellis v Bombay Municipal Corporation (1987) LRC (Const) 351. 85 Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan (1997) AIR SC 152. 86 Jain v State of Karnataka (1992) 3 SCC 666; Krishnan v State of Andhra Pradesh (1993) 4 LRC 234. 87 Lawson v Housing New Zealand (1997) 4 LRC 369; Gosselin v Quebec (Attorney General) [2002] 4 SCR 429 [82]. 88 Explanatory Notes 19.
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Duty to Investigate The right to life under s 16 also likely encompasses a procedural duty to investigate deaths that have occurred in circumstances where a public entity may have breached the right to life.89 The duty is likely to arise where a person has been killed by a police officer or other State agent,90 or where a person has died while in the care, custody or control of a public entity (such as a hospital, health service or correctional facility).91 This duty is consistent with the application of the right to life at both an international and domestic level. United Kingdom courts have construed the right to life to impose a procedural duty on the State to conduct an ‘effective investigation into any death occurring in circumstances where the substantive obligations not to take life arbitrarily and to protect life have (or may have) been breached’.92 International jurisprudence provides that an effective investigation must: be initiated by the State; be conducted independently; be effective insofar as it leads to a determination of culpability, not in the sense that it generates a particular result; be reasonably prompt; be transparent and open to public scrutiny; and allow for the family of the deceased to participate in the inquiry process.93 The Victorian Coroner’s Court has recognised a similar duty, stating the right to life ‘requires the Coroner to conduct an inquest that investigates not only the immediate circumstances of the death but also the possibility of systemic failure on the part of the authorities to protect life’.94 The right to life and duty to investigate is likely to be particularly relevant to the deaths of Indigenous peoples in custody or at the hands of police officers. For example, the right was recently invoked in relation to the inquest into the death of Tanya Day; the Coroners Court of Victoria confirmed the application of the right to life and ruled that the role of systemic racism in Day’s death and the obligation to provide ‘culturally safe and trauma-informed care’ would be investigated.95 Scope of the Positive Duty Queensland decision-makers will likely interpret this positive obligation ‘so that an impossible or disproportionate burden is not imposed upon the authorities’.96 These obligations must be considered in light of the priorities of the relevant public entity and the resources available to them.97 The scope of the positive duties owed by public entities under s 16 is tempered by s 13, which provides that conduct and decisions that limit human rights will still be consistent with the HRA provided the limitation is ‘reasonable’ and ‘demonstrably justified’.98 Conciliated Outcomes The conciliated outcomes that complainants may seek when making a complaint under s 16 include: • Issuing a private or public explanation of the circumstances leading to the death; • Issuing a private or public apology and acknowledgement of responsibility for the death;
89 Victorian Equal Opportunity & Human Rights Commission (n 13) 2. 90 See, eg, McCann v United Kingdom (1995) 21 ECHR 97. 91 See, eg, Edwards v United Kingdom (2002) 35 EHRR 487; Tas v Turkey (Application No 24396/94), 14 November 2000; Keenan v United Kingdom (2001) 33 EHRR 913. 92 McCann v United Kingdom (1995) 21 ECHR 97; R (Amin) v Home Secretary (2004) 1 AC 653. 93 Jordan v United Kingdom (2001) 37 EHRR 52. 94 Coronial Investigation of 29 Level Crossing Deaths – Ruling on the Interpretation of Clause 7(1) of Schedule 1 of the Coroners Act 2008 (Vic) (25 June 2010) (Web Page, 08 September 2019)
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 14
• Paying compensation (for example, for medical treatment or out-of-pocket expenses incurred by a relative of the deceased, or in circumstances where the complainant's life was at risk, but they did not actually die);99 • Altering policies directed at protecting life (for example, policies relating to the use of force, the assessment of suicide risk, the assessment of health risks, the investigation into deaths, the provision social security and other welfare rights); • Providing education and training for staff directed at protecting life (for example, training relating to the use of force, the assessment and response to suicide risk, the assessment and response to other risks to life, the investigation into deaths, the provision of welfare rights or ‘underlying determinants of health’); • Improving workplace health and safety procedures, policies and practices; • Developing decision-making tools and other instruments for assessing risks to life (such as suicide risks, risks to health, risks posed by natural disasters, etc); • Directing an inquest or inquiry into a death that involved a public authority; and • Agreeing to take disciplinary measures against individuals involved in the death.
99 See, eg, Menson v United Kingdom (Application No 47916/99) 6 May 2003; R (D) v Secretary of State for the Home Department [2006] EWCA Civ 143.
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 15
Section 17: Right to Protection from Torture and Cruel, Inhumane or Degrading Treatment
Aimee Griffin, Tiarelle Zach and Alexia Cuss
‘17 Protection from torture and cruel, inhuman or degrading treatment
A person must not be —
(a) subjected to torture; or
(b) treated or punished in a cruel, inhuman or degrading way; or
(c) subjected to medical or scientific experimentation or treatment without the person’s full, free and informed consent.’
The right to protection from torture or cruel, inhuman or degrading treatment or punishment (‘the right’) under s 17 of the Human Rights Act 2019 (Qld) (‘HRA’) was modelled on art 7 of the International Covenant on Civil and Political Rights (‘ICCPR’),1 and is seen as containing ‘one of the most fundamental values of a democratic society’.2 The ICCPR creates a non-derogable protection against torture or cruel, inhuman or degrading treatment to protect the dignity and physical and mental integrity of individuals. The right also additionally protects against non-consensual medical treatment and scientific experimentation, to protect peoples’ bodily autonomy, and reflect the importance of informed consent. Given that the HRA was enacted to consolidate human rights protections and establish dispute resolution processes for certain rights recognised in international law,3 it is necessary for Queensland to draw upon existing interpretations of the right in domestic and international jurisprudence to ensure that a consistent approach is taken. This is particularly critical as the right is represented similarly in international and domestic legislation.4 Interpretation The right has been understood to ‘capture treatment which is grossly disproportionate in the circumstances’ in domestic and international case law.5 Although the boundaries between the different aspects of the right (torture, and cruel, inhuman or degrading treatment) are not completely concrete under international and domestic law, as they are largely approached as ‘being distinct but related’6 rights, for illustrative purposes, it is worth briefly exploring the individual backgrounds of the components first. Torture The definition of ‘torture’ is derived from art 1 of the United Nations Convention Against Torture.7 Rogers v Chief summarises the principles and the three main components that must be present for treatment to
1 International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976) art 7 (‘ICCPR’). 2 See, eg, Gorobet v Moldova (European Court of Human Rights, Third Section, Application No. 30951/10, 11 October 2011) [49]. 3 Explanatory Notes, Human Rights Bill 2018 (Qld) 2 (‘Explanatory Notes’). 4 See, eg, Human Rights Act 2004 (ACT) s 10; Charter of Human Rights and Responsibilities Act 2006 (Vic), s 10; Human Rights Act 1998 (UK), art 3. 5 Taunoa v Attorney-General (2007) 9 HRNZ 104 [176] (‘Taunoa’). See also Certain Children by their litigation guardian Sister Marie Brigid Arthur v Minister for Families and Children (No 2) (2017) 52 VR 441 [239], [245] (‘Certain Children (No 2)’). 6 Council of Europe, The prohibition of torture: A guide to implementation of Article 3 of the European Convention on Human Rights - Human Rights Handbook No. 6, July 2003, 11. 7 Convention against Torture and Other Cruel, Inhumane or Degrading treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 1.
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 16
constitute torture.8 Firstly, there must be a certain severity of physical or mental pain and suffering; secondly, the act must be intentionally inflicted for a prohibited purpose; and thirdly, it must be inflicted with involvement by a public official or person acting in an official capacity either instigating, consenting, or acquiescing.9 To ascertain the severity of the treatment, courts have looked at the duration of the treatment, its mental and physical effects, as well as the sex, age and state of health of the victim.10 One overseas case amounting to torture involved a group of police officers repeatedly striking a suspect on the back of the head during an interrogation.11 Here, it was evident that public officials were using unnecessary force and there was a significant severity to the treatment.12 In cases where the severity of harm falls short of the high bar for torture, such as a single punch to the head rather than an extensive beating,13 it may be necessary to consider the corresponding component of the right of ‘cruel, inhuman or degrading treatment’. Cruel, Inhuman or Degrading Treatment Cruel, inhuman or degrading treatment has not been as clearly defined as torture, however, the case of Ireland v United Kingdom drew a distinction between such treatment and torture, finding that cruel, inhuman or degrading treatment may involve acts that are less severe and that are not conducted for a prohibited purpose.14 Islam v Director General identified that although the threshold is lower than torture, there is still a minimum level of severity necessary.15 Degrading treatment has been described to hold the lowest level of severity,16 and has been specifically defined in Wainwright v United Kingdom as acts where the object is to humiliate or debase the person concerned.17 Further, the suffering and humiliation must stretch further than the inevitable humiliation connected with legitimate forms of treatment.18 The treatment must necessarily go beyond the deprivation of liberty to engage this right.19 The courts have taken into account the same factors as are considered in relation to torture, such as the manner, intensity and duration of the act, its physical and mental effects, and the victim’s sex, age and health status.20 Particular vulnerabilities of the victim have also been considered.21 Thus, in the Australian case of Davis v State of Victoria,22 the Victorian Supreme Court found that that the treatment of a mental health patient, who was dragged naked across a carpeted floor, amounted to cruel, inhuman and degrading treatment.23 Medical or Scientific Experimentation or Treatment The protection against medical or scientific treatment without consent is also derived from art 7 of the ICCPR,24 and mirrors equivalent provisions in domestic human rights legislation in Victoria and the ACT.25
8 Rogers v Chief Commissioner of Police (General) [2009] VCAT 2526, [113] (‘Rogers’). 9 Ibid. 10 See, eg, Selmouni v France (2000) 29 EHRR 403, [100] (‘Selmouni v France’). See also AYI15 v Minister for Immigration & Border Protection [2016] FCA 1554, [10]. 11 Ibid. 12 Ibid. 13 See, eg, Rogers (n 8) [114]. 14 Ireland v United Kingdom (1978) 5310 ECHR 71, [162] (‘Ireland v United Kingdom’). 15 Islam v Director General of the Justice and Community Safety Directorate [2016] ACTSC 27, [66] (‘Islam v Director General’). 16 Rogers (n 8) [115]. 17 Wainwright v United Kingdom (2007) 44 EHRR 40, [41] (‘Wainright’). 18 Human Rights Committee, Views: Communication No 900/1999, 76th sess, UN Doc CCPR/C/76/D/900/1999 (28 October 2002) [4.6] (‘C v Australia’). 19 Human Rights Committee, Views: Communication No 265/1987, 35th sess, UN Doc CCPR/C/35/D/265/1987 (2 May 1989) [9.2] (‘Vuolanne v Finland’). 20 See, eg, Ireland v United Kingdom (n 14); Selmouni v France (n 10) [100]; Bataliny v Russia (European Court of Human Rights, Application No. 10060/07, 23 July 2015) 18 [82]; AYI15 v Minister for Immigration & Border Protection [2016] FCA 1554, [10]. 21 Human Rights Committee, Views: Communication No 1184/2003, 86th sess, UN Doc CCPR/C/86/D/1184/2003 (17 March 2006) [9.4] (‘Brough v Australia’). 22 Davies v State of Victoria [2012] VSC 343. 23 Ibid [56]. 24 ICCPR (n 1) art 7. 25 See, Human Rights Act 2004 (ACT) s 10(c); Charter of Human Rights and Responsibilities Act 2006 (Vic), s 10(c).
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 17
The majority of litigation involving this section has not been focused on scientific experimentation,26 but rather the interpretation of ‘medical treatment’ and what classifies ‘full, free and informed consent’. In De Bruyn v Victorian Institute of Forensic Mental Health, ‘medical treatment’ was defined as an operation, administration of drug or other substance, or any other medical procedure.27 The court in Re BWV; Ex parte Gardner also provided that “whether or not a procedure is a medical procedure, depends upon whether the medical knowledge upon which it is based has become so widespread within the community that it might… be regarded as common knowledge [and] not medical knowledge”.28 Accordingly, a ban on smoking in a hospital did not fall under the definition of medical treatment in De Bruyn, as the court held that the reasons for a smoking ban are ‘now such a matter of common knowledge that it could not be properly termed as… based upon medical knowledge’.29 However, it was held in an ACT case that a mental health assessment to determine fitness for a firearm licence could properly be seen as based upon medical knowledge.30 Interpreting the boundaries of consent has also been a primary consideration of the courts. Whether consent is full and informed will be determined by reference to whether the individual understood the treatment completely and was told of its potential side-effects and risks.31 The consent must also be free in that there is no duress or undue pressure to force compliance with the treatment.32 Indeed, deciding whether the affected person had the capacity to consent has been frequently litigated. Under common law, it is presumed that all adults have capacity to consent, and the burden is on the defence to show there was no capacity.33 It was determined in In Re T that the right enables a person of full age and understanding to reject medical treatment, and this decision does not have to be rational or sensible.34 ACT v JT specifies that there is a presumption in favour of life-sustaining treatment , except where this conflicts with a competent patient’s right to refuse.35 Therefore, in the case of ACT v JT where the plaintiff refused to eat, it was held to not be against his human rights to force-feed him as he was determined to be of unsound mind and could not accordingly refuse treatment.36 Other interpretations In its General Comment on art 7, the Human Rights Committee (‘HRC’) stated that distinctions between the elements depend on the ‘nature, purpose and severity of the treatment’.37 As such, the HRC did not consider it necessary to establish sharp distinctions between torture and other forms of ill-treatment, or develop a list of prohibited acts.38 One approach taken to interpret the equivalent right under the European Convention of Human Rights (‘ECHR’),39 is to distinguish treatment by reference to the severity of pain and suffering occasioned and the purpose of the treatment.40 As set out above, treatment is classified on a spectrum of severity, with the most
26 Cheriff Bassiouni, Thomas Baffes and John Evrad, ‘An Appraisal of Human Experimentation in International Law and Practice: The Need for International Regulation of Human Experimentation’ (1981) 72(4) Journal of Criminal Law and Criminology 1597, 1611. 27 De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111, [159] (‘De Bruyn’). 28 Re BWV; Ex parte Gardner [2003] VSC 173, 75. 29 De Bruyn (n 27) 111, [160]. 30 P v Registrar of Firearms (Administrative Review) [2018] ACAT 20. 31 See, eg, D v S (1981) 93 LSJS 405. 32 See, eg, Beausoleil v Sisters of Charity (1964) 53 DLR (2d) 65. 33 In Re T (An adult: Consent to Medical Treatment) [1992] 4 All ER 649. 34 Ibid 665. 35 Australian Capital Territory v JT [2009] ACTSC 105, 62 (‘ACT v JT’). 36 Ibid. 37 Human Rights Committee, General Comment No 20: Article 8 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), 44th sess, UN Doc HRI/GEN/1Rev.9 (10 March 1992) [4]. For commentary, see Association for the Prevention of Torture and Centre for Justice and International Law, Torture in International Law, a guide to jurisprudence (2008) 7-8 (‘Torture in International Law’). 38 Ibid. 39 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature on 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), Article 3. For scholarly commentary, see Manfred Nowak, UN Covenant on Civil and Political Rights (2nd ed, 2005) 160. 40 See ‘The Greek Case’ (1969) 1 Yearbook of the European Convention of Human Rights 1; Torture in International Law (n 39) 57.
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 18
severe being torture and the least being degrading treatment.41 A relative assessment of the circumstances of the case, including the sex, age and state of health of the victim, the duration of the ill-treatment, and its effects are all also considered.42 However, this approach has been critiqued for drawing arbitrary and subjective boundaries between the types of treatment experienced by victims. Elias J contends that where there has been a breach of the right, it is likely that the treatment endured was cruel, inhuman and degrading all at once.43 Victorian courts have discussed an alternative approach in obiter which does not require three distinct inquiries into whether the treatment is unlawful.44 Instead, the elements are viewed as an expression of a norm that prohibits conduct that is ‘incompatible with humanity.’45 In Certain Children (No 2), Dixon J endorsed this approach and stated that it is a combination of the ‘adjectives in the right that defines the prohibited treatment’.46 As such, Victorian courts have been hesitant to distinguish between the different components of the right. Regardless of which approach is followed in Queensland, it is imperative that the HRA, and the rights it enshrines, be viewed ‘as a living instrument that is interpreted in light of the present-day conditions’.47 Accordingly, it is important to keep in mind when considering previous case examples in this area that ‘certain acts which were classified in the past as “inhuman and degrading treatment”, as opposed to “torture”, may be classified differently in the future’.48 As recognised by the European Court of Human Rights, ‘the increasingly high standard required in the protection of human rights will inevitably require greater firmness in assessing breaches of the fundamental values of democratic societies.’49 Finally, although it is not an express requirement under the HRA, it might still be relevant to consider the purpose of the treatment when determining whether there has been a violation of the right, as it speaks to the circumstances of the conduct.50 Where the treatment departs from the terms of the legislation or standards and principles connected to the legislation, it is likely that the treatment is arbitrary and therefore not proper treatment.51 For example, in Lukatela v Birch,52 a police officer who sprayed intoxicated detainees with capsicum spray was ‘clearly acting outside his authority’ and intended to cause pain and discomfort to the victims.53 However, the absence of a purpose may not conclusively rule out a violation of the right.54 Conciliated Outcomes Court remedies are not always the most effective or beneficial to the parties involved. The variability and adaptability of remedies in a conciliation process are likely to be preferable to individuals whose rights under s 17 are violated. Conciliated outcomes that claimants may seek include:
• Apologising and acknowledging wrongdoing. Giving the affected individual the opportunity to be heard and to speak to the offender about the effect of their actions and allowing the offender to apologise and agree to work together to best remedy the situation can be an empowering experience.55 For example, the Queensland Ombudsman was able to assist a complainant’s
41 Torture in International Law (n 37) 7-8. 42 Ireland v United Kingdon (n 14). 43 Taunoa (n 5) [83]. 44 Certain Children (No 2) (n 5) [250]. 45 Taunoa (n 5) [81]-[82]. 46 Certain Children (No 2) (n 5) [250]. 47 Selmouni v France (n 10) [101]. 48 Ibid. 49 Ibid. 50 Certain Children (No 2) (n 5) [250]-[258]. 51 Taunoa (n 5) [81]-[82]. 52 (2008) 164 ACTR 24. 53 Ibid [68], [71]. 54 Certain Children (No 2) (n 5) [250]. 55 Carl Schneider, ‘Apology in Mediation’ (2000) 17(3) Mediation Quarterly 41.
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 19
pregnant daughter to access maternity clothes whilst imprisoned, and the correctional centre acknowledged that there was a systemic issue with their policy on providing clothes.56 • Correcting the conditions of ill-treatment to impose minimum standards of proper treatment. For example, the Victorian Ombudsman, noting the prohibition on degrading treatment, was able to ensure treatment for incontinence aids that had stopped, were promptly re-commenced by prison and medical staff.57 • Compensating persons for the pain and suffering experienced, including by providing financial reparations and access to support services. The physical and mental trauma victims suffer as a result of a rights violation may affect their ability to work, thus they may seek compensation for loss of earnings or opportunity.58 Additionally, it may be an effective remedy to fund counselling sessions or remedial medical treatments to assist the victim in returning to the position they were prior to the trauma.59 • Educating the person who caused the harm will also be an important factor, and where an organisation or governing body is concerned, systemic changes may be necessary.60 In the context of medical treatment performed without fully informed consent, a system change that seeks to improve communication between doctors and their patients that helps to clarify consent may be a useful conciliated outcome.61 The parties might also agree on registration restrictions that prevent, for example, an offending doctor from working with particularly vulnerable people to provide greater protection.62 • A transfer of the victim from the facility where they are receiving the ill-treatment may be appropriate. • Training for correctional staff regarding their conduct, removing offenders from positions of authority,63 or adding staff to lessen the stress which might affect the judgment of offenders. In Lukatela v Birch,64 the use of capsicum spray to desist detainees who were intoxicated and difficult might be the result of a lack of training in some cases. • Referring the offender to the relevant authorities, including the Queensland Ombudsman,65 the Queensland Parole Board,66 or relevant medical professional boards if necessary. • Ongoing inspections of the conditions of the treatment and punishment in correctional and health facilities. • Taking into account that Queensland has a high population of First Nations peoples,67 it is important to acknowledge that the above types of conciliated outcomes on their own may be insufficient to meet the needs of this group. A conciliated outcome for Indigenous peoples that takes on a more holistic approach might include meeting with the individual’s community and elders for supplementary reconciliation.68 This might involve apologising directly to the community or facilitating
56 Queensland Ombudsman, Annual Report 2017-18 (Report, 31 August 2018) 56. 57 Victorian Ombudsman, Annual Report 2018 (Report, 18 September 2018) 34. 58 Sarah Joseph, Katie Mitchell and Linda Gyorki, Seeking Remedies for Torture Victims (Gerald Staberock, 2nd ed, 2014) 264. 59 Jeevan Sharma and Tobias Kelly, ‘Monetary Compensation for Survivors of Torture’ (2018) 10(2) Journal of Human Rights Practice 307. 60 Victor Madrigal-Borloz, ‘Rehabilitation of Torture Survivors’ (Research Paper, International Rehabilitation Council for Torture Victims, 2013) 40. 61 Ibid 47. 62 See, eg, Australian Health Practitioner Regulation Agency, ‘Undertakings: National Restrictions Library’ (Research Paper, Australian Health Practitioner Regulation Agency, July 2017). 63 Lukatela v Birch (2008) 164 ACTR 24 [46]. 64 Ibid. 65 Human Rights Act 2019 (Qld) ss 73(1), 73(7). 66 If the treatment amounts to an ‘exceptional circumstance’ under the Corrective Services Act 2006 (Qld) s 176. 67 Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians June 2016 (Catalogue No 3238.0.55.001, 18 September 2018). 68 Patrick Dodson, ‘The State of Reconciliation in Australia’ (Research Paper, Reconciliation Australia, November 2017).
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 20
further conversations and working together to achieve the best outcome to ensure that the ill- treatment does not reoccur.
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 21
Section 18: Right to Freedom from Forced Work
Alexia Cuss
‘18 Freedom from forced work
(1) A person must not be held in slavery or servitude.
(2) A person must not be made to perform forced or compulsory labour.’
Section 18 of the Human Rights Act 2019 (QLD) (‘HRA’) protects against the human rights violations of slavery, servitude and forced labour. These violations are unfortunately not a relic of the past, with modern forms of slavery and forced labour continuing to be present throughout Australia. Although violations of these rights occur in many industries, they are particularly common in the areas of construction, agriculture, catering and cleaning.1 Accordingly, public entities should be especially mindful of exploitation when engaging contractors and services in these sectors, to ensure they are not complicit in any violation of this section of the HRA.2 Given that the rights enshrined in s 18 are largely derived from international legal norms and instruments,3 it is necessary to explore the approaches taken in other jurisdictions to ensure that a compatible interpretation is adopted in Queensland. To reflect the diversity of ways in which violations of this right occurs, the conciliated outcomes available to victims should be diverse and flexible to ensure that complainants have access to appropriate remedies.4 Interpretation Slavery As stated by the High Court of Australia in the key case of R v Tang,5 which involved the first conviction for slavery under Division 270 of the Criminal Code Act,6 the meaning of ‘slavery’ in Australia and its definition in the Act is derived from the 1926 Slavery Convention.7 Article 1 of the Slavery Convention defines slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.’8 Whilst the court largely endorsed this interpretation, they distinguished it from the definition in Australia,9 as the Australian wording excludes the ‘status’ of slavery and is limited to the ‘condition’ of slavery alone. This exclusion merely reflects the position in Australia, where de jure and chattel slavery have never been legally recognised.10
1 Julia O’Connell Davidson, Modern Slavery (Palgrave Macmillan, 2015) 133. See also Pam Stewart ‘Tortious Remedies for Deliberate Wrongdoing to Victims of Human Trafficking and Slavery in Australia’ (2011) 34(3) UNSW Law Journal 898, 898. 2 Human Rights Act 2019 (Qld) s 9, 10 (‘HRA’). 3 See International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976) art 8 (‘ICCPR’). See also Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (‘ECHR’) sch 1 art 4; Human Rights Act 1998 (UK) art 4. 4 See Basak Çali ‘Explaining variation in the intrusiveness of regional human rights remedies in domestic orders’(2018) 16(1) International Journal of Constitutional Law 214. 5 R v Tang (2008) 237 CLR 1 (‘Tang’). 6 Criminal Code Act 1995 (Cth) (‘Criminal Code Act’). 7 Tang (n 5) 16 [21]; Slavery Convention, opened for signature on 25 September 1926, 60 UNTS 254 (entered into force 9 March 1927) (‘Slavery Convention’). See also Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, opened for signature 30 April 1956, 266 UNTS 3 (entered into force 7 September 1956) art 7. 8 Slavery Convention (n 7) art 1(1). 9 See Criminal Code Act (n 6) s 270.1. 10 Tang (n 5) 20 [33]. See also Stephen Tully ‘Sex, Slavery and the High Court of Australia: The Contribution of R v Tang to International Jurisprudence’ (2010) 10 International Criminal Law Review 403, 405.
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 22
The court in Tang emphasised that the definition of ‘slavery’ should not be ‘artificially narrowed’, nor should the exact boundaries or circumstances of its invocation be circumscribed.11 To properly address the ever- evolving nature of modern-day de facto slavery, a broad and flexible approach to interpretation needs to be adopted.12 The court recognised that such an approach is supported by the phrasing of ‘any or all’ in the definition both domestically and internationally,13 and is to be favoured over the more narrow application adopted by the European Court of Human Rights in Siliadin v France.14 Accordingly, whilst there are a number of factors that may be relevant to showing the exercise of ownership over another human being,15 the most dominant indicia of slavery is the ‘commodification of an individual by treating them as an object of sale and purchase’.16 Queensland decision-makers should interpret the meaning of ‘slavery’ in the HRA broadly to be consistent with the existing approach in Australia17 and to give effect to our obligations under international law. Whilst a liberal approach is indeed necessary to properly protect one’s rights under s 18, decision-makers should still be mindful not to ‘debase the currency of language, or banalise crimes against humanity, by giving slavery a meaning that extends beyond the limits of the text, context and purpose of the 1926 Slavery Convention’.18 Invocations of ‘slavery’ should therefore only be reserved to the most heinous violations of s 18 and ‘cases involving the total degradation of and dominance over another person’.19 Servitude The exact meaning and scope of ‘servitude’ is not clearly defined in any international legal instruments, nor is the boundary between ‘servitude’ and ‘slavery’ clearly established.20 However, the general consensus appears to be that the term ‘servitude’ is intended to cover ‘all conceivable forms of dominance over another human being’,21 which ‘deny the victim of their freedom in fundamental respects, yet fall short of ownership’.22 It is arguably unnecessary to draw clear boundaries between the two concepts, as the protections under s 18 are not mutually exclusive. Furthermore, ‘those who engage in violations of such rights are not likely to arrange their practices to conform to some convenient taxonomy’.23 Accordingly, the meaning of ‘servitude’ is intended to capture more subtle forms of domination24 and is primarily seen as involving the use of coercion, threats or deception that cause the victim to believe they are not free.25 The scope of ‘servitude’ under the Criminal Code Act 1899 (Qld) was expanded to include non-sexual forms of servitude, in order to reflect and criminalise the diverse range of exploitative circumstances that occur. Protection against violations of s 18(1) of the HRA in cases involving servitude should therefore be similarly
11 Tang (n 5) 38 [81], 18-19 [28]-[29]. Cf Prosecutor v Kunarac (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Case No IT-96-23-T & IT-96-23/1-T, 22 February 2001) 194 [542] (‘Kunarac’). 12 Cf Siliadin v France (2005) VII Eur Court HR 333 (‘Siliadin’). 13 See Tang (n 5) 19 [31]. See also Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, opened for signature 30 April 1956, 266 UNTS 3 (entered into force 7 September 1956) art 7. 14 Siliadin (n 12). 15 See Kunarac (n 11). 16 Tang (n 5) 21 [35]. 17 See, eg, R v Kovacs [2009] 2 Qd R 51; Nantahkum v R (2013) 279 FLR 148; R v McIvor and Tanuchit (2010) 12 DCLR (NSW) 77; Ho v R (2011) 219 A Crim R 74. 18 Tang (n 5) 20 [32]. 19 Andreas Schloenhardt and Laura-Rose Lynch ‘McIvor and Tanuchit: A Truly ‘Heinous’ Case of Sexual Slavery’ (2012) 35(1) UNSW Law Journal 175, 197. 20 See Siliadin (n 12). 21 Schloenhardt and Lynch (n 19), quoting Anne Gallagher 'Human Rights and Human Trafficking: Quagmire or Firm Ground? A Response to James Hathaway' (2009) 49 Virginia Journal of International Law 789, 803. See also Anne Gallagher, The International Law of Human Trafficking (Cambridge University Press, 2010) 179-89; Andreas Schloenhardt and Jarrod Jolly, 'Honeymoon from Hell: Human Trafficking and Domestic Servitude in Australia' (2010) 32 Sydney Law Review 671, 689. 22 Revised Explanatory Memorandum, Criminal Code Amendment (Slavery and Sexual Servitude) Bill 1999 (Cth) [44], quoted in Schloenhardt and Lynch (n 19). See Siliadin (n 12); Virginia Mantouvalou ‘The Prohibition of Slavery, Servitude and Forced and Compulsory Labour under Article 4 ECHR’ in Filip Dorssemont, Klaus Lörcher and Isabelle Schömann (eds), The European Convention on Human Rights and Employment Relations (Bloomsbury Publishing, 1st Edition, 2013) 143, 145. 23 Tang (n 5) 19 [29]. 24 See Explanatory Memorandum, Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012. 25 See Stephen Tully ‘Sex, Slavery and the High Court of Australia: The Contribution of R v Tang to International Jurisprudence’ (2010) 10 International Criminal Law Review 403, 412; Criminal Code Act 1995 (Cth), s 270.4. See also R v Huang & Anor (District Court of Queensland, Moyinhan J, 8 February 2017).
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 23
interpreted as broadly as the circumstances of each case allow. A liberal approach to the interpretation of s 18(1) is necessary to protect the human rights enshrined in the provision, particularly as the rights are considered absolute and non-derogable.26 Forced Labour Whilst the protection against forced labour under s 18(2) of the HRA is open to some limitation,27 protection from violation is still seen as paramount, as reflected in the number of international legal instruments that protect against exploitative labour practices.28 The European Court of Human Rights has used the definition of ‘forced labour’ in the 1930 Forced Labour Convention29 as ‘the starting point for interpreting the term’s meaning’30 in s 18’s equivalent in the ECHR.31 The Forced Labour Convention defines ‘forced or compulsory labour’ as ‘all work or service that is exacted from a person under the menace of penalty and for which the person has not offered themselves voluntarily’.32 ‘Work’ encompasses all types and contexts of employment or occupation.33 The fundamental distinguishing factor between ‘forced labour’ and ‘servitude’ lies in the ‘victim’s belief in the impossibility of altering their condition’.34 Servitude is therefore ‘an aggravated type of forced labour’.35 Accordingly, the primary distinction between ‘forced’ and ‘compulsory’ labour is that in the former, there is actual duress, so the victim is mentally, physically or financially coerced into complying, whereas the coercive element in the latter is founded in legal regulations.36 Although the implications of the intersection between protections under s 18(2) of the HRA and existing labour laws may be unclear,37 the provision should nevertheless be interpreted to protect against as many forms of exploitative conduct that it can appropriately permit. Given the presence of forced labour across many sectors in Australia, public entities should ensure that they do their due diligence when outsourcing services to prevent complicity in violations of s 18(2). Furthermore, the State should note that not all derogations of the right in accordance with s18(3) will be absolved. Accordingly, public entities should be mindful of the risk of contravening s 18, where compulsory labour, such as prison labour, is capable of being found to be unjustifiably exploitative.38 The International Labour Organisation provides the following factors to consider whether prison labour conditions are exploitative:39
26 See, eg, Ramona Vijeyarasa and Jose Miguel Bello Y Villarino ‘Modern Day Slavery? A Judicial Catchall for Trafficking, Slavery and Labour Exploitation: A Critique of Tang and Rantsev’ (2012) 8 Journal of International Law and International Relations 36, 55. 27 See HRA (n 2) s 18(3)(a)-(d). 28 See, eg, Forced Labour Convention 1930 (No 29), opened for signature 28 June 1930 (entered into force 1 May 1932) (‘Forced Labour Convention’); Abolition of Forced Labour Convention (C105), opened for signature 25 June 1957 (entered into force 17 January 1959); Worst Forms of Child Labour Convention (C182), opened for signature 17 June 1999 (entered into force 19 November 2000). 29 Forced Labour Convention (n 28) art 2. See also ICCPR (n 3). Cf Criminal Code Act 1995 (Cth), s 270.6. 30 See Van der Mussele v Belgium (European Court of Human Rights, Court (Plenary), Application No 8919/80, 23 November 1983 [32]; Graziani-Weiss v Austria (European Court of Human Rights, Grand Chamber, Application No 31950/06, 18 January 2012) [36]; Stummer v Austria (European Court of Human Rights, Grand Chamber, Application No 3745/02, 7 July 2011) [118]. See also Niklas Bruun and Joanna Unterschütz ‘Article 5 – Prohibition of Slavery and Forced Labour’ in Filip Dorssemont et al (eds), The Charter of Fundamental Rights of the European Union and the Employment Relation (Hart Publishing, 2019) 209, 218. 31 ECHR (n 3) art 4. 32Forced Labour Convention (n 28) art 2(1). 33 See Bruun and Unterschütz (n 30) 209, 218. 34 Siliadin (n 12) [123]. See Chowdury v Greece (European Court of Human Rights, First Section, Application No 21884/15, 30 March 2017) [99]; CN v France (European Court of Human Rights, Grand Chamber, Application No 67724/09, 11 October 2012) [92] (‘CN v France’). 35 CN v France (n 34) [91]. 36 Bruun and Unterschütz (n 30) 218-219. 37 See, eg, Mantouvalou (n 22) 154. See also the Modern Slavery Act 2018 (Cth). 38 See Mantouvalou (n 22). Note the ECHR has been reluctant to find that prison labour is exploitative. See eg, Meier v Switzerland (European Court of Human Rights, Application No. 10109/14, 9 February 2016), as “the purpose of compulsory work in the context of the execution of custodial sentences and measures [is] to develop, maintain or promote prisoners’ capacity to resume working life after their release… the requirement to work… fostered appropriate social behaviour and the capacity to avoid reoffending”: at [14]. 39 International Labour Organisation, ‘When is it ok to use prison labour?’ Q&As on Business and Forced Labour (Web Page)
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 24
a) Prisoners are able to freely consent to the labour relationship (written consent should preferably be obtained) - ‘…if a prisoner refuses the work offered there [should be] no menace of any penalty, such as loss of privileges or an unfavourable assessment of behaviour which could jeopardize any reduction in his or her sentence.’40 b) The conditions of work are similar to those outside the prison, such as:
▪ Wages are comparable to free workers with similar skills and experience in the relevant position (allowing for relevant differences, e.g. due to costs for prison security supervision of the workers and productivity levels);
▪ Wages are paid directly to workers;
▪ Daily working hours are in accordance with the law;
▪ Workplace health and safety standards are complied with; and c) Prisoners obtain benefits such as learning new skills and the opportunity to work cooperatively in a controlled environment. Conciliated Outcomes The HRA does not expressly include an equivalent of the ‘right to an effective remedy’ that is contained in the ECHR. Thus the same positive obligations imposed on states to provide adequate protections against, and remedies for, rights abuses may not apply.41 However, to ensure that the enforcement of human rights in Australia remains consistent with international standards, victims of especially egregious rights violations, such as those occurring under s 18 of the HRA, should undoubtedly have avenues for appropriate redress available to them. Given the diversity of circumstances in which rights under s 18 may be violated, claimants against public entities are likely to seek a broad range of remedies, although most claimants are likely to seek a conciliated outcome in the form of compensation. Such compensation should encompass both material and non- material damages, 42 as those subject to forced labour usually incur extensive loss and enduring trauma from the emotional and physical injuries they suffer.43 Claimants may also seek compensation for rehabilitation, such as through the provision of medical, psychological, legal or social support services.44 Some claimants may seek to recover unpaid wages,45 and if appropriate, other remedies available in labour law.46 Lastly, the
40 Ibid. 41 See, eg, Siliadin (n 12) [112]. See also Marta Johansson ‘State (In)capacity to prevent Human Trafficking: Adequate Responses to the Market for Servitude and Forced Labour’ in Joakim Nerfelius and Eleonor Kristoffersson, Human Rights in Contemporary European law (Hart Publishing, 2015) 105, 115. 42 United Nations Office on Drugs and Crime, Model Law against Trafficking in Persons, 5 August 2009, 55-56, cited in Inter-Agency Coordination Group against Trafficking in Persons (ICAT), Issue Paper on Providing Effective Remedies for Victims of Trafficking in Persons (2016) 1, 11 (‘Issue Paper on Effective Remedies for Victims of Human Trafficking’). 43 See Ligia Kiss and Cathy Zimmerman ‘Human trafficking and labor exploitation: Toward identifying, implementing and evaluating effective responses’ (2019) 16(1) PLOS Medicine 1, 1. 44 United Nations Human Rights Council, Summary of the consultations held on the draft basic principles on the right to effective remedy for victims of trafficking in persons: Report of the United Nations High Commissioner for Human Rights, 26th sess, Agenda Items 2 and 3, A/HR/26/18 (2 May 2014) [21], cited in ICAT, Issue Paper on Effective Remedies for Victims of Human Trafficking (n 42) 11. 45 See, eg, Ram v D & D Indian Fine Food Pty Ltd & Trivedi [2015] FCCA 389 (‘Ram’). ‘Mr Ram was a victim of trafficking and forced labour, and despite the case involving the first conviction for forced labour in Australia, the perpetrator, Mr Trivedi, was only sentenced to community service and ordered to pay $1000 fine. After the criminal proceedings concluded, the Mr Ram obtained pro bono legal representation and brought a civil action against the Mr Trivedi and his company for unpaid wages and damages. A court ordered Mr Trivedi and his restaurant to pay $186,000 in unpaid wages to Mr Ram. The judge accepted that Mr Ram was trafficked from India to Australia and forced to work 12 hours a day, seven days a week, without pay for 16 months in an Indian restaurant’: ICAT, Issue Paper on Effective Remedies for Victims of Human Trafficking (n 30) 22. 46 See ICAT, Issue Paper on Effective Remedies for Victims of Human Trafficking (n 30) 22 [4.4]. For example, victims of labour exploitation may be able to pursue compensation claims through labour law avenues instead of or in addition to criminal or civil action. See also Ram (n 45) for illustration of this. Key benefits of these avenues is that unsuccessful applicants are not usually
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 25
value of an apology in cases such as these, where claimants have suffered grave moral wrongdoing and injury to their dignity, should not be overlooked:47 ‘public apologies, official declarations restoring the dignity, reputation and rights of the victim, and administrative sanctions for the officials involved in the violation’ of their rights may also be sought.48 It is clear that a holistic approach is needed, both in terms of interpretation and the conciliated outcomes that are given, to address the egregious nature of slavery, servitude and forced labour in Australia. Accordingly, the HRA ‘should be viewed as a living instrument that is to be interpreted in light of the present-day conditions,’49 especially regarding the interpretation of s 18, given the fundamental values of our democratic society that the provision enshrines.
subject to a cost order, as in other civil claim areas, and the relevant employment body is often able to pursue the action to obtain compensation and/or prosecution of the employer, removing the burden from victims: at ICAT 22 [4.4]. 47 Prue Vines ‘The Power of Apology: Mercy, Forgiveness or Corrective Justice in the Civil Liability Arena?’ (2007) 1 Public Space: The Journal of Law and Social Justice 3, cited in also Pam Stewart ‘Tortious Remedies for Deliberate Wrongdoing to Victims of Human Trafficking and Slavery in Australia’ (2011) 34(3) UNSW Law Journal 898, 908. 48 ICAT, Issue Paper on Effective Remedies for Victims of Human Trafficking (n 42) 12. 49 Siliadin (n 12) [121].
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 26
Section 19: Freedom of Movement
Rui Yu
‘19 Freedom of Movement
Every person lawfully within Queensland has the right to move freely within Queensland and to enter and leave it, and has the freedom to choose where to live.’
Section 19 of the Human Rights Act 2019 (Qld) (‘HRA’) is broadly analogous to s 13 of the Human Rights Act 2004 (ACT) and s 12 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’), which are further derived from arts 12 and 13 of the International Covenant on Civil and Political Rights (‘ICCPR’).1 Interpretation The Explanatory Note of the Human Rights Bill 2018 (Qld) explains that s 19 is drafted to reflect the intentions of art 12 of the ICCPR.2 In Australia, ‘a treaty only becomes a direct source of individual rights and obligations when it is directly incorporated into domestic legislation’.3 Now that the internationally recognised right to freedom of movement has been incorporated directly into domestic legislation via the HRA, s 19 can be interpreted in accordance with arts 12 and 13 of the ICCPR.4 The right imposes a negative obligation on Queensland public bodies to refrain from acting in a way that would unduly restrict the freedom of movement of individuals in Queensland. Further, the freedom of movement only applies to individuals.5 The right is not intended to impose positive obligations on public entities (defined in s 9 to include Queensland Police Service, Ministers, etc.) and governments by requiring them to take positive actions to promote free movement, such as providing free public transport.6 Importantly, the right only applies to those who are ‘lawfully within Queensland’.7 There are other justifiable restrictions to the freedom of movement, such as illegality, court orders, visa expiration and the protection of society.8 Section 13(1) of the HRA authorises limitations on all human rights, but ‘only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’.9 Persons ‘Lawfully within Queensland’ The UN Human Rights Committee (‘HRC’) has stated that:10 ‘[i]n principle, citizens of a State are always lawfully within the territory of the State’.11 Also, individuals ‘who entered the State illegally, but whose status has been regularised… must be considered to be lawfully within the territory for the purposes of article 12’.12
1 International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) arts 12, 13 (‘ICCPR’). 2 Explanatory Note, Human Rights Bill 2018 (Qld), 20. 3 Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273, 287. 4 ICCPR (n 1) arts 12, 13. 5 Human Rights Act 2019 (Qld) (‘HRA’) s 11. 6 ‘Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (IP 46): Protections from statutory encroachment’, Australian Law Reform Commission (Report, 8 December 2014)
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 27
In relation to the equivalent provision in the Victorian Charter, it has been said that the following people may be held not to be ‘lawfully within the State’: • where legislation prohibits a person; or • if they are unlawful non-citizens breaching the Migration Act 1958 (Cth).13 Despite this, the High Court of Australia has held that unlawful non-citizens should not be permanently detained without clear Parliamentary intention and acknowledgement from the legislature that addresses the consequences of such detention,14 which is in line with art 13 of the ICCPR.15 Thus, the principle of legality has provided some protection of individuals’ right to movement prior to the HRA.16 When the right may be restricted The freedom of movement is not absolute;17 s 43 of the HRA specifies that the Parliament has the power to make an override declaration, but only in exceptional circumstances such as ‘war, a state of emergency, or an exceptional crisis situation constituting a threat to public safety, health or order’.18 Article 12.3 of the ICCPR states that ‘freedom of movement shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order…, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant’.19 In Celepli v Sweden,20 a Turkish man falsely suspected of terrorism claimed that Sweden had violated his human rights for restricting his movement by ordering him to report to the police three times a week and not giving him the right to appeal despite never being officially charged. Sweden argued that Celepli’s claim under art 12 was untenable, since he could ‘only be regarded as having been lawfully in the country to the extent that he complied with the restrictions imposed upon him’21 and that the restrictions were necessary ‘for the protection of national security and public order’ under art 12(3).22 Ultimately, the HRC held that Celepli was lawfully in the territory of Sweden for the purposes of art 12(1) of the ICCPR, but only under the restrictions placed upon him by the State party.23 Bearing in mind that the State party had invoked reasons of national security to justify the restrictions on the author's freedom of movement, the HRC found that the restrictions to which the author was subjected to were compatible with those allowed under art 12(3) of the ICCPR.24 Thus, an ‘alien’ can be regarded as ‘lawfully within the State’ but still have their freedom of movement validly restricted due to national security reasons, and as long as the State can justify the difference in treatment.25 The HRC has stated that laws authorising restrictions: ‘must conform to the principle of proportionality; must be appropriate to achieve their protective function; must be the least intrusive instrument amongst those which might achieve the desired result; and must be proportionate to the interest to be protected’.26 For example, counter-terrorism laws and quarantine laws will inevitably limit individuals’ movement,27 but laws requiring passports to be surrendered automatically upon bankruptcy may not fall within the permissible restrictions of
13 ‘Section 12 – Freedom of movement’, Victorian Government Solicitor’s Office (Charter Guide, 21 July 2017)
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art 12(3).28 The Victorian decision of DPP v Kaba concerned a man who was questioned by police during a random check.29 Justice Bell held that the coercive questioning from police, in circumstances where the individual was made to feel that they could not cease cooperating or leave, breached the applicant’s right to freedom of movement under the Victorian Charter.30 Comparison with s 92 of the Constitution Prior to the existence of the HRA, the freedom of movement was tentatively protected under s 92 of the Constitution, which provides: ‘[o]n the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free’.31 This construction shares similarities with s 19, in that movement must be lawful and ‘absolute’ freedom does not warrant ‘anarchy’. It is worth noting that the meaning of ‘absolutely free trade and commerce’ is different to ‘absolutely free intercourse’.32 The freedoms under the Constitution are subject to competing public interests33 and will be subject to the best interests of the child where relevant;34 noting that cases involving the relocation of separated parents and child custody have historically relied upon s 92.35 In Cole v Whitfield,36 the term ‘intercourse’ was construed as meaning ‘to pass to and fro among the States without burden, hindrance or restriction’.37 However, such freedom is subject to reasonable limitations. In Miller v TCN Channel Nine,38 Murphy J proposed that there was a freedom of movement ‘in and between every part of the Commonwealth’ implied by the provision.39 The High Court, however, in Kruger v Commonwealth – a case involving a question of whether a freedom of movement and association existed for indigenous children who were part of the stolen generations – was split 3:3 on the right’s implied existence under Australian law.40 The ambiguous nature of the freedom of movement prior to the HRA is aptly described by Williams and Hume: ‘[there is a] lack of a clear textual basis for such a freedom and for the incidents of the constitutionally prescribed system of federalism which would support it, and an implicit view that the Constitution’s federalism is not intended to protect individuals’.41 Conciliated Outcomes There are several situations in which an applicant may seek conciliation in reliance on s 19 of the HRA. For example, persons with disability or mobility impairment may bring a claim under the HRA if they are prevented from accessing premises and goods or services due to the absence of any special access provisions. In these circumstances, the most appropriate remedy will usually be an apology and an undertaking to provide special measures to ensure access to persons with impairment. An examination of conciliated outcomes reached in complaints brought under anti-discrimination legislation provides examples of the types of undertakings that may arise in these circumstances, including the installation of unisex accessible toilets and support rails, the
28 ALRC Report 129 (n 16) 196. 29 Director of Public Prosecutions v Kaba [2014] VSC 52, [458] (‘DPP v Kaba’). 30 Ibid. See also Charter of Human Rights and Responsibilities Act 2006 (Vic) s 12 (‘Victorian Charter’). 31 Australian Constitution s 92. 32 ALRC Report 129 (n 16) 192. 33 Ibid; Cunliffe v The Commonwealth (1994) 182 CLR 272, 307–308 (Mason CJ). See also AMS v. AIF (1999) 199 CLR 160. 34 B v B (1997) 21 Fam LR 676. 35 AMS v. AIF (n 33). 36 (1988) 165 CLR 360. 37 Cole v Whitefield (n 38) [23], citing Gratwick v Johnson (1945) 70 CLR 1, 17. 38 [1986] 161 CLR 556. 39 Ibid [11]. 40 Kruger v Commonwealth (1997) 190 CLR 1. 41 George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013) 120; ALRC Report 129 (n 18) 192-193.
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 29
provision of special parking spaces for persons with a disability, allowing assistance animals inside premises, and the provision of sign-language interpreters at public performances.42 In circumstances where a public authority has breached an individual’s freedom of movement and the breach cannot be justified on public policy grounds, an appropriate outcome may be an apology and an undertaking aimed at preventing future breaches, such as the provision of additional staff training or changes to departmental policies. In cases where the breach was substantial or caused significant mental distress or humiliation, compensation orders may be appropriate.
42 Conciliation Register, Australian Human Rights Commission (Register, 2019)
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 30
Section 20: Freedom of Thought, Conscience, Religion and Belief
Lauren Causer and Angelina Vukovic
‘20 Freedom of thought, conscience, religion and belief
(1) Every person has the right to freedom of thought, conscience, religion and belief, including -
a) the freedom to have or to adopt a religion or belief of the person’s choice; and
b) the freedom to demonstrate the person’s religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.
(2) A person must not be coerced or restrained in a way that limits the person’s freedom to have or adopt a religion or belief.’
Section 20 of the Human Rights Act 2019 (Qld) (‘HRA’) establishes the right to freedom of thought, conscience, religion and belief, which is expressed as including two distinct rights.1 Firstly, s 20(1)(a) provides for the freedom to have or adopt a religion or belief. Secondly, s 20(1)(b) confers on every person the freedom to demonstrate their religion or belief in worship, observance, practice and teaching, individually or as part of a community in public or in private. The explanatory notes to the Human Rights Bill 2018 (Qld) describe s 20 as ‘refer[ing] to the right of everyone to develop autonomous thoughts and conscience, to think and believe what they want and to have or adopt a religion, free from external influence’.2 This right is expressly modelled upon art 18 of the ICCPR,3 and has been adopted in the Victorian Charter of Human Rights and Responsibilities 20064 and the Human Rights Act 2004 (ACT).5 The right has also been afforded comparable protection in Canada, South Africa, New Zealand and the European Union.6 The sensitivity and complexity of the freedom of religion and belief necessitates a careful and considered approach to the interpretation of rights enshrined in s 20.7 This approach must be informed by international and domestic jurisprudence to ensure a compatible interpretation is adopted in Queensland.8 It is also important to consider the various outcomes that individuals may seek under the conciliation process established by the HRA,9 as court proceedings may not always be the most appropriate or cost-effective means of obtaining relief where public entities have breached an individual’s rights under s 20.10
1 Human Rights Act 2019 (Qld) s 20 (‘HRA’). 2 Explanatory Notes, Human Rights Bill 2018 (Qld) 20 (‘Explanatory Notes’). 3 Explanatory Notes (n 2) 3. 4 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 14. 5 Human Rights Act 2004 (ACT) s 14. 6 Canadian Charter of Rights and Freedoms art 2(a),(b); Constitution of South Africa 1996 s 15; Bill of Rights Act 1990 (NZ) s 13; European Convention on Human Rights, opened for signature 4 November 1953, [1953] ETS 5 (entered into force 3 September 1953) art 9 (‘ECHR’). 7 HRA (n 1) s 20; Human Rights Commissioner, Human Rights and Equal Opportunity Commission, Free to Believe? The Right to Freedom of Religion and Belief in Australia (Discussion Paper No 1, 18 February 1997) 21 (‘Free to Believe’). 8 HRA (n 1) s 48(3). 9 HRA (n 1) div 2 sub-div 4. 10 HRA (n 1) s 20.
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Interpretation Thought and Conscience Although there is limited case law to guide the Queensland courts on the scope of freedom of ‘thought’ and ‘conscience’, the United Nations Human Rights Committee (‘HRC’) has emphasised that these freedoms extend to ‘thought on all matters and the freedom to maintain one’s personal convictions.’11 While the extent to which freedom of thought may be relied upon as an actionable right remains uncertain,12 in Victoria, it has been considered ‘arguable’ that discrimination on the grounds of holding an opposing academic opinion may engage the right to freedom of thought.13 The HRC has also emphasised that requiring a person to reveal their thoughts will limit the freedom.14 In Queensland, however, any burden on the outward demonstration of this freedom will be more readily actionable under the rights to freedom of expression or privacy under the HRA.15 Furthermore, the definition of ‘conscience’ likely to persuade Queensland courts was determined in R v AM16 as those ‘inward convictions of what is morally right or morally wrong.’17 In this case, Refshauge J noted that in light of international case law, there is ‘a strong sense’ that the freedom protects only an individual’s mental processes and does not extend to actions motivated by one’s conscience.18 Religion and Belief ‘Religion’ is not defined in the HRA or in the ICCPR, however,the High Court of Australia has considered the definition of religion in the context of s 116 of the Constitution, which specifically prohibits the Commonwealth parliament from legislating in respect of religion.19 Notably, the High Court has emphasised that s 116 is not a source of individual rights and does not amount to a constitutional guarantee of the freedom of religion.20 Nevertheless, when determining whether the Church of Scientology constituted a religious institution, the High Court pointed to certain ‘indicia of religion’.21 Mason ACJ and Brennan J held that the criteria of religion are twofold: ‘first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief’.22 Similarly, Wilson and Deane JJ suggested that ‘one of the more important indicia of ‘a religion’ is that the particular collection of ideas and/or practices involves belief in the supernatural’.23 The indicia approach may, however, be too restrictive given international jurisprudence on the meaning of religion. It is accepted that the right is ‘not limited in application to traditional religions or…beliefs with institutional characteristics or practices analogous to those of traditional religions.’24 For example, the European Court of Human Rights (‘ECtHR’) has explicitly avoided attempts to define religion in the European Convention on Human Rights (‘ECHR’),25 explaining that the lack of this definition within international human rights instruments is deliberate and logical.26 Indeed, formulating a definition that is simultaneously flexible
11 Human Rights Committee, General Comment No 22: Article 18 (Freedom of Thought, Conscience or Religion), 48th sess, UN Doc CCPR/C/21/Rev.1/Add.4 (30 July 1993) [1] (‘General Comment 22’). 12 Eva Brems, Article 14 The Right to Freedom of Thought, Conscience and Religion (Martinis Nijhoff Publishers, 2006) 11. 13 McAdam v Victoria University [2010] VCAT 1429. 14 General Comment 22 (n 11) [3]. 15 Human Rights Act 2019 (Qld) ss 21, 25(a) (‘Human Rights Act (Qld)’). 16 [2010] ACTSC 149. 17 Ibid [31]. 18 Ibid [46]. 19 Australian Constitution s 116. 20 Free to Believe (n 7) 12. 21 Church of the New Faith v Commissioner of Pay-roll Tax (1983) 154 CLR 120, 131-142 (Mason ACJ and Brennan J), 171-176 (Wilson and Deane JJ). 22 Ibid 136. 23 Ibid 174. 24 General Comment 22 (n 11) [2]. 25 ECHR (n 6) art 9. 26 'Guide on Article 9 of the European Convention on Human Rights', European Court of Human Rights (Guide, 31 December 2019) [14]
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 32
enough to cover the whole spectrum of religions worldwide and specific enough to be applicable to individual cases is an impossible undertaking.27 The HRC has instructed that the freedom of religion contained in art 18 of the ICCPR is ‘far-reaching and profound’.28 The terms ‘religion’ and ‘belief’ are to be construed broadly to protect theistic, non-theistic, and atheistic beliefs.29 It is therefore not a requirement that a religion or belief possesses analogous institutional characteristics or practices to those of traditional or mainstream religions.30 Given that s 20 of the HRA is trying to achieve a more comprehensive, rights-based protection of the freedom of religion than exists at the federal level, and is modelled on almost identical international provisions,31 the broad international approach to what constitutes thought, conscience, religion or belief ought to be preferred by Queensland courts. Moreover, it is not the court’s role to assess the legitimacy of beliefs or the ways in which these beliefs are manifested.32 As Lord Nicholls of Birkenhead remarked, the ‘freedom of religion protects the subjective belief of an individual’, therefore, ‘it is not for the court to embark on an inquiry into the asserted belief and judge its “validity” by some objective standard’.33 Similarly, in Haigh v Ryan,34 the Governor of the Victorian prison in which the applicant was incarcerated argued that withholding Tarot cards from the applicant was not a violation of his freedom to practice religion because the cards were not an essential element of Paganism.35 In finding that the prisoner’s rights under the Charter of Human Rights and Responsibilities 2009 (Vic) were violated,36 Ginnane J noted that ‘courts and administrators should be extremely wary about determining what is required for a person to practise their religious beliefs’.37 A court is, however, concerned with whether the religion or belief asserted is genuine and sincerely held.38 That is, the individual or collective conviction in question ‘must attain a certain level of cogency, seriousness, cohesion and importance’.39 The line is often least visible when interpreting the meaning of ‘thought’ and ‘conscience’.40 Some jurisdictions have implied a threshold requirement within these non-religious beliefs. For example, the non-religious belief ‘must relate to an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs’.41 Ultimately, consistent with domestic and international approaches, a broad interpretation of thought, conscience, religion and belief should be adopted by Queensland courts. A Queensland court may find it
27 Ibid. 28 General Comment No 22 (n 11) [1]. 29 Ibid [2]. 30 General Comment No 22 (n 11) [2]; Queensland Government, 'Guide: Nature and scope of the protected human rights', Queensland Government (Guide, June 2019) 18
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 33
useful to refer to the following broad categories of religion or belief which have been endorsed by the ECtHR:42 • Major or ancient world religions, such as Buddhism,43 Judaism,44 Sikhism,45 various forms of Christianity,46 Islam,47 and Hinduism;48 • New religions such as Mormonism,49 Neo-Paganism,50 and the Jehovah’s Witnesses;51 and • Coherent and sincerely held philosophical convictions, such as veganism,52 pacifism,53 conscientious objection,54 oppositions to abortion,55 rejection of same-sex marriage,56 secularism,57 and Scientology.58 The freedom to have and demonstrate a religion or belief The freedom of religion or belief comprises of an action-belief dichotomy.59 The freedom to have or adopt a religion or belief seeks to prevent interference with an individual’s private spiritual existence (forum internum) while the freedom to demonstrate that religion or belief confers the right to defend these convictions to the world at large (forum externum).60 The freedom to have or adopt a religion or belief, as with freedom of thought and conscience, is a ‘far- reaching’ defensive right, in that it requires ‘states to refrain from interfering with an individual’s spiritual or moral existence’.61 It protects the inner faith of the individual from illegitimate intervention and provides for the freedom to practice one’s religion or belief in private.62 Adopting a religion or belief ‘necessarily entails’ the freedom to choose, replace or alter one’s religious views.63 This internal right is recognised as absolute and therefore cannot be interfered with in any way,64 for example by dictating what a person believes or coercing them to change their beliefs through the threat of force, administrative or criminal sanctions,65
42 Guide on Article 9 ECHR (n 26) [17]. See also Paul M Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge University Press, 2005) 207-208; Evans (n 39) 55. 43 See, eg, Jakóbski v Poland (European Court of Human Rights, Chamber, Application No 18429/06, 7 December 2010). 44 See, eg, Cha’are Shalom Ve Tsedek v France (2000) VII Eur Court HR 231; Francesco Sessa v. Italy (2012) III Eur Court HR 165. 45 See, eg, Phull v France (2005) I Eur Court HR 409. 46 See, eg, Svyato-Mykhaylivska Parafiya v Ukraine (European Court of Human Rights, Chamber, Application No 77703/01, 14 June 2007); Savez crkava “Riječ života” and Others v. Croatia (European Court of Human Rights, Chamber, Application No 7798/08, 9 December 2010). 47 See, eg, Leyla Şahin v Turkey (2005) XI Eur Court HR 173. 48 See, eg, Kovaļkovs (n 37). 49 See, eg, The Church of Jesus Christ of Latter-Day Saints v the United Kingdom (European Court of Human Rights, Chamber, Application No 7552/09, 4 March 2004). 50 See, eg, Ásatrúarfélagið v Iceland (European Court of Human Rights, Chamber, Application No 22897/08, 18 September 2012). 51 See, eg, Religionsgemeinschaft der Zeugen Jehovas and Others v Austria (European Court of Human Rights, Chamber, Application No 40825/98, 31 July 2008); Jehovah’s Witnesses of Moscow and Others v Russia (European Court of Human Rights, Chamber, Application No 302/02, 10 June 2010) [99] (‘Jehovah’s Witnesses of Moscow’). 52 See, eg, W v the United Kingdom (European Commission of Human Rights, Application No 18187/91, 10 February 1993). 53 See, eg, Arrowsmith v United Kingdom (1978) 3 EHRR 218. 54 See, eg, Bayatyan v Armenia (2011) IV Eur Court HR 1. 55 See, eg, Van Schijndel and Others v the Netherlands (European Commission of Human Rights, Application No 30936/96, 10 September 1997). 56 See, eg, Eweida (n 32). 57 See, eg, Lautsi and Others v Italy (2011) III Eur Court HR 61 90 [35]. 58 See, eg, Scientology Kirche Deutschland e.V. v Germany (European Commission of Human Rights, Application No 34614/97, 7 April 1997). 59 Free to Believe (n 7) 22. 60 William A Schabas, Nowak’s CCPR Commentary (N.P. Engel Verlag, 3rd ed, 2019) 501-502; Nicholas Aroney and Benjamin Saunders, ‘Freedom of Religion’ in Matthew Groves, Janina Boughey and Dan Meagher (eds), The Legal Protection of Rights in Australia (Hart Publishing 2019) 285, 288-289. 61 Explanatory Notes (n 2) 20. 62 Schabas (n 60) 504. 63 General Comment 22 (n 6) [5]; Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, 3rd ed, 2013) 563. 64 General Comment No 22 (n 6) [3]; Murdoch (n 26) 18; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, GA Res 36/55, 36th sess, UN Doc A/RES/36/55 (25 November 1981) art 1; Interim Report: Legal Foundations of Religious Freedom in Australia (Report, November 2017) 18. 65 See, eg Kokkinakis v. Greece (European Court of Human Rights, Grand Chamber, Application No 14307/88, 25 May 1993); Ivanova v Bulgaria (European Court of Human Rights, Chamber, Application No 52435/99, 12 April 2007) (‘Ivanova’); Masaev v Moldova
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 34
psychological pressure,66 dissolving or refusing official recognition of a religious association,67 or restricting access to public goods.68 This is reflected in s 20(2) of the HRA, which states that a person must not be coerced or restrained in a way that limits their freedom to have or adopt a religion or belief. On the other hand, an example of non-interference can be drawn from the case of Aitkin v State of Victoria69 which involved the provision of voluntary Special Religious Instruction (‘SRI’) programs in three Victorian State primary schools.70 The court held that the SRI programs did not interfere the parents’ freedom, on behalf of their children, not to hold a religious belief or engage in a religious activity, nor was religious belief identified by choosing to opt out of the SRI program.71 Section 20(1)(b) provides that every person has the freedom to demonstrate their religion or belief in worship, observance, practice and teaching, either individually or as part of a community in public or private. The concept of ‘demonstrating’ a religion or belief through worship, observance, teaching and practice has been held to extend to a broad range of acts.72 According to the Committee, teaching includes the freedom to establish religious schools and to distribute religious texts or publication, either through formal education or missionary work.73 ‘Practice’ has also been interpreted broadly to include: missionary activities,74 building places of worship,75 proselytising,76 wearing religious clothing,77 and the observance of dietary restrictions.78 This has prompted courts to qualify the freedom as protecting only those acts ‘intimately linked’ to religious practice or belief and not to each act which is merely motivated by that faith.79 This approach has been cited by courts in Victoria and the ACT,80 however, in Haigh v Ryan Ginnane J emphasised that ‘courts should be wary about determining what is required for a person to practise their religious beliefs. It is usually not part of the judicial function to determine such a question’.81 In Canada, it is sufficient that the individual sincerely believes in the religious significance of the practice for it to fall within the scope of the freedom.82 In light of these divergent approaches, how this limb will be interpreted by the Queensland courts remains an open question. It has been suggested that doubts regarding whether a particular activity constitutes a requisite ‘practice’ could be resolved in the justification stage, where ‘the further away a practice is from the core doctrines and practices of a religion or belief, the more readily a limitation on that practice may be justified’.83 The collective manifestation of a religion or belief is also protected under s 20(1)(b). Any limitations on the free association of persons, including incidentally, for example through the refusal of a permit for the construction of a place of worship, will burden this aspect of the freedom.84
(European Court of Human Rights, Chamber, Application No 6303/05, 12 May 2009); Ebrahimian v France (2015) VIII Eur Court HR 99. 66 Mockutė v Lithuania (European Court of Human Rights, Chamber, Application No 66490/09, 27 February 2018) [123]-[125]. 67 Jehovah’s Witnesses of Moscow (n 51) [99]-[103]; Biblical Centre of the Chuvash Republic v Russia (European Court of Human Rights, Chamber, Application No 33203/08, 12 June 2014) [52]; Murdoch (n 26) 27. 68 Ivanova (n 62) [79]; General Comment No 22 (n 11) [5]; Murdoch (n 26) 14. 69 [2012] VCAT 1547. 70 Ibid. 71 Ibid [518] (Ginnane J). 72 General Comment 22 (n 6) [4]; Human Rights Committee, Views: Communication No 721/1996, 74th sess, UN Doc CCPR/C/74/D/721/1996 (15 April 2002) [6.6] (‘Boodoo v Trinidad and Tobago’). 73General Comment 22 (n 6) [4]. 74 Schabas (n 60) 519. 75 Hoskin v Greater Bendigo City Council [2015] VCAT 1124 (‘Hoskin’); Rutherford v Hume City Council [2014] VCAT 786 (‘Rutherford’); Human Rights Committee, Concluding Observations: Iran, 103rd sess, UN Doc CCPR/C/IRN/CO/3 (29 November 2011). 76 Kokkinakis (n 65). 77 R v Chaarani [2018] VSC 387; Human Rights Committee, Views: Communication No 1825/ 2008, 106th sess, UN Doc CCPR/C/106/D/1852/2008 (4 February 2013) (‘Bikramjit Singh v France’). 78 Islam v Director-General of the Justice and Community Safety Directorate [2018] ACTSC 322; Human Rights Committee, Views: Communication No 721/1996, 74th sess, UN Doc CCPR/C/74/D/721/1996 (15 April 2002) (‘Boodoo v Trinidad and Tobago’). 79 Williamson (n 33); Eweida (n 32) [82] quoted in Christian Youth Camps v Cobaw Community Health Services (2014) 50 VR 256, 367 (‘Cobaw’). 80 R v AM (n 33) [46]; Cobaw (n 79) 365. 81 Haigh (n 32) [55]; See also Iliafi v Church of Jesus Christ of Latter Day Saints (2014) 221 FCR 86, [117]. 82 Multani v Commission Scolaire Marguerite-Bourgeoys [2006] 1 SCR 256 [35]-[38]. 83 Judicial Council of Victoria, Charter of Human Rights Bench Book (2016) [6.8.3]; Alistair Pound and Kylie Evans, Annotated Victorian Charter of Rights (Thomas Reuters, 2nd ed, 2018) 134. 84 Hoskin (n 75) [68] quoting Rutherford (n 75) [30]-[31].
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 35
Limitations The broad scope of the protection afforded by s 20 to the adoption and expression of religious convictions and beliefs means that the right may be practically burdened by competing rights an array of circumstances. Any burden on an individual’s freedom of thought, conscience, religion or belief must be justified under s 13 of the HRA. How Queensland courts will determine whether the freedoms have been justifiably limited will depend on the factual matrix of each case, however, domestic and international case law may guide their analysis. Firstly, Queensland courts must take the ‘nature of the right’ into account.85 Although s 20(1)(a) may be limited under s 13 of the HRA, the ‘absolute’ nature of this freedom under international law is demonstrative of the ‘purpose and underlying values’ of the right.86 Thus, a restraint on demonstrating religious beliefs will be more readily justified under the HRA than a limit on the freedom to have or adopt a religion or belief,87 with the Queensland Human Rights Commission observing that ‘it is very unlikely that [s 20(1)(a)] would be limited in Queensland’.88 The courts may also consider whether the act or decision burdening the freedom was effected for a proper purpose.89 Although art 18(3) of the ICCPR differs from s 20(1)(b) by providing an exhaustive list of legitimate bases for limiting the freedom to manifest one’s religion or beliefs (to protect public safety, order, health or morals, and the fundament rights and freedoms of others), these grounds may guide Queensland courts in identifying whether a limitation has been imposed for a legitimate end. Maintaining public safety and order are commonly cited purposes for imposing a limit on the freedom to demonstrate one’s religion or belief.90 However, a survey of this international and domestic case law suggests that Queensland courts should exercise restraint when determining whether a limit on religious practice is appropriate and adapted to upholding public safety. For example, laws which prohibit face-concealing religious attire have been repeatedly held not to be suitably connected to, or necessary for achieving, this purpose.91 Finally, it has been suggested that the closer the practice is to the core elements of an individual’s belief, such as worship or ceremony, the greater the protection that will be afforded to the right in the balancing stage of proportionality analysis.92 However, this analysis should be undertaken objectively according to the doctrines of the particular faith or belief system, and should not reflect the court’s subjective judgment into the legitimacy of a particular practice.93 Conciliated Outcomes Under the HRA, a person who believes their human rights have been breached by a public entity may make a complaint to the Queensland Human Rights Commission.94 Provided the requirements in s 65 are met,95 the commissioner may conduct a conciliation conference which aims to resolve the complaint in a manner that is informal, quick and efficient.96 Given the deeply personal nature of one’s thoughts, conscience and religious beliefs, discursive conciliation may prove effective in achieving tailored outcomes for claimants by allowing them to explain how their beliefs have been undermined. Potential outcomes may include:
85 Human Rights Act (Qld) (n 1) s 13(2)(a). 86 Explanatory Notes (n 2) 17. 87 Pound and Evans (n 83) 130. 88 ‘Right to Freedom of Thought, Conscience, Religion and Belief’ Queensland Human Rights Commission (Factsheet, July 2019)
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• An apology: given the fundamental role deeply-held religious or conscientious beliefs play in shaping a person’s identity, morality and way of life, it has been argued that requiring a person to act contrary to their beliefs can have a profound impact on that individual’s sense of dignity and self-worth.97 Thus, an apology may prove uniquely effective in remedying this emotional and psychological distress, by providing the claimant with some vindication through the proper recognition and validation of their identity and beliefs.98 • An adjustment to the public entity’s organisational policies or practices that provide the claimant with the flexibility to manifest their religious beliefs where they interact with the entity’s policies, procedures and services.99 Desired adjustments may include: the provision of prayer spaces or rooms in the relevant school, hospital, or prison; allowing an imprisoned person reasonable access to the materials required to practice their religion,100 including dietary requirements;101 adjusting a public school’s uniform policies to cater for religious dress codes;102 the development of alternative educational arrangements to assist a student who cannot practically attend school due to their need to comply with religious holidays, observance or dress requirements;103 and adjusting public service policies to minimise circumstances where religious attire must be justifiably removed, for example to maintain security in courts or airports,104 where this is practically necessary for identification purposes.105 • A commitment to implementing cultural awareness training for public service employees: This outcome may be attractive to applicants as it implies both a validation of a claimant’s faith or creed and reflects a recognition of the harm caused by the denial of these beliefs. Training is considered an effective way to foster a culture of tolerance and respect for religious diversity amongst decisionmakers and public service employees.106 • Compensation for lost earnings or opportunity: This may be sought where a claimant’s failure to comply with a workplace dress code, or their adherence to religious holidays or prayer requirements, has led to the termination of their employment in the public service.107
97 Aroney and Saunders (n 60) 310. 98 Robyn Carroll, ‘Apologies as a Legal Remedy’ (2013) 35(2) Sydney Law Review 317, 338; White & White v Gollan [1990] HREOCA 7 [17]. 99 Australian Human Rights Committee, ‘Conciliation Register’ Complaint Information Service (Register, 14 December 2012)
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Section 21: Freedom of Expression
Campbell Halliday, Monet Mooney and Thomas Parnell
‘21 Freedom of expression
(1) Every person has the right to hold an opinion without interference.
(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Queensland and whether—
(a) orally; or
(b) in writing; or
(c) in print; or
(d) by way of art; or
(e) in another medium chosen by the person.’
Section 21 of the Human Rights Act 2019 (Qld) (‘HRA’) protects the ability to express and hold opinions and is vital to the operation of democratic societies. This section is constituted by two distinct rights: the right of every person to hold an opinion without interference;1 and the right of every person to seek, receive and impart information and ideas of all kinds, no matter the medium of communication.2 The latter right is generally referred to as the ‘freedom of expression’. Both rights are modelled upon art 19 of the International Covenant on Civil and Political Rights (‘ICCPR’).3 Interpretation A right to hold an opinion Section 21(1) protects both the right to hold an opinion and the right to not hold an opinion.4 This right relates to a person’s autonomy, and may be enlivened where a person’s opinion is involuntarily influenced by a public authority, or where legislation penalises or disadvantages a person because of their opinions.5 The ICCPR proclaims this right as absolute, and unable to ever be interfered with, due to the unjustifiability of interfering with a person’s internal autonomy.6 Once the opinion is expressed, the second right is enlivened. Freedom of Expression The right to freedom of expression contained in s 21(2) is more complex than the right to hold an opinion, as the expression of an opinion, observation or belief can interfere with the rights of others. Jurisprudence relating to the constitutionally implied freedom of political communication,7 United States jurisprudence,8 and
1 Human Rights Act 2019 (Qld) s 21(1) (‘HRA’). 2 Ibid s 21(2). 3 International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) art 19.1 (‘ICCPR’). 4 RT (Zimbabwe) v Home Secretary [2013] 1AC 152, [43]. 5 Victorian Government Solicitor’s Office, ‘Section 15 – Freedom of Expression’ Human Rights (Web Page, 22 August 2017)
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the equivalent section of the Charter of Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’) 9 is relevant to the way Queensland decision-makers should interpret s 21(2). In these jurisdictions, judgments focus on the meaning of ‘expression’ and the validity of content-based limitations upon expression. The following analysis reveals that s 21(2) should be interpreted more broadly than the implied freedom of political communication, but more narrowly than the First Amendment in the United States, as it is subject to ‘reasonable limits’ under s 13 of the HRA.10 What is ‘expression’? Freedom of expression protects a broad range of conduct and speech that aims to seek, receive and impart information; it encompasses any act capable of conveying meaning.11 However, when assessing this, there is no requirement to prove that the specific act actually conveyed the correct meaning to a specific person. Rather it is sufficient that a reasonable member of the public would perceive that the act seeks to convey one or more messages.12 Both the acts of painting over advertising posters and wearing a tent have been held to constitute forms of expression.13 Indeed, there are few limits on what constitutes ‘expression’ as it is generally interpreted broadly.14 Criminal conduct is perhaps the most obvious exception, due to the ‘destructive impact [of criminal conduct] upon society’s most cherished democratic values’.15 Similar considerations have led Canadian courts to hold that violence, though capable of conveying meaning, is not protected by the freedom of expression.16 However, not all criminal conduct should be excluded from the protection offered by s 21(2). Minor criminal conduct, such as peaceful protest without a permit, may and should constitute expression, as the ‘unlawfulness does not detract from the fact that the protest is intended to convey a message’.17 In addition to protecting the expression of information, s 21(2) includes a freedom to seek and receive information, similarly to s 15(2) of the Victorian Charter and art 19(2) of the ICCPR. In XYZ v Victoria Police,18 Bell J declared that this aspect of the right incorporates an implied positive right to access government-held information, with a corresponding positive obligation on the government to provide access to that information.19 The circumstances in which this obligation arises were not exhaustively described, but include times when information engages the public interest, or when the seeker has a legitimate interest in the information.20 This right exists independently of freedom of information legislation, however, it is capable of being observed by reference to the Freedom of Information Act 1982 (Cth).21 In circumstances where conduct falls outside of recognised forms of ‘expression’, or where the obligation to provide information is uncertain, the question will be whether imposing a limitation on the freedom is ‘justified in a free and democratic society based on human dignity, equality and freedom’.22
9 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15 (’Victorian Charter’). 10 HRA (n 1) s 13. 11 Magee v Delaney [2012] VSC 407 at [62] (‘Magee’). 12 Ibid [63]. 13 Kerrison v Melbourne City Council [2014] FCAFC 130 at [232]; Magee (n 11) at [65]. 14 See the Victorian case of Kuyken v Lay [2013] VCAT 1972 at [205] – [210] and American case Village of Skokie v National Socialist Party of America 373 NE 2d 21(Ill S Ct, 1978) and contrast with the Canadian cases of R v Butler [1992] 1 SCR 452; R v Keegstra [1990] 3 SCR 697. 15 Magee (n 11) at [62]. 16 Irwin Toy Ltd v Quebec (Attorney General) [1989] 1 SCR 927; R v Keegstra [1990] 3 SCR 697. 17 Alistair Pound and Kylie Evans, Annotated Victorian Charter of Rights (Thomson Reuters, 2nd ed, 2018) 144. 18 [2010] VCAT 255, 19 Ibid [528] – [530], [554] – [558]. 20 Ibid. 21 Ibid [515]-[559] and [560]-[573]. 22 HRA (n 1) s13(1).
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 39
Justifiable Limitations In the United States, the freedom of expression is contained in the First Amendment of the Constitution, preventing Congress from making any ‘law … abridging the freedom of speech, or of the press’.23 This is a negative, injunctive right and is absolute and personal, embodying: ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials’.24 The United States’ right goes further, however, by protecting hateful and defamatory speech,25 as well as that required for the functioning of a democratic government. Thus, it is evident that the United States courts have construed the right strictly and inflexibly, in contrast to other jurisdictions, like Canada, Victoria and the ACT, which apply a ‘proportionality’ or ‘reasonableness’ test.26 Given the adoption of such a test in other Australian jurisdictions, and its presence in s 13 of the HRA, it would be consistent to interpret the Queensland freedom of expression in a similar manner, distancing it from the First Amendment. What about the implied freedom of political communication? In 1992, the High Court of Australia recognised the existence of a freedom of political communication implied from ss 7, 24, 64 and 128 of the Australian Constitution.27 The High Court found that such a right, allowing free and unrestricted communication about public affairs and politics between all members of the community, was necessary to uphold a system of representative and reasonable government.28 Therefore, the ‘class of communication protected by the implied freedom in practical terms is wide’.29 However, that right is not absolute, but limited to what is necessary and may not extend to non-political or non-governmental communication or to non-federal communication.30 Further, it is not an individual ‘right’, but a restraint upon the exercise of legislative power, enabling courts to challenge the validity of Commonwealth and state laws on the basis that they burden the freedom of political communication and are therefore inconsistent with the Constitution.31 In deciding whether freedom of expression has been limited, the issue is the effect of the law on political communication in general, not its effect on the method of expression.32 For example, when the Federal Court found that requiring protesters to purchase permits required citizens to seek permission to express political opinions, the High Court held that they had conflated the freedom with an individual right.33 Instead, the question was whether the by-laws requiring protesters to obtain permits were reasonable and proportionate restrictions upon the freedom.34 This proportionality test is echoed in s 13(2) of the HRA, and requires that there not be a reasonable practicable means of achieving the same purpose that has a less restrictive effect on the freedom, balancing the importance of the purpose served by the restricting law and the extent of the
23 United States Constitution (n 8) amend I. 24 Brandenburg v Ohio 395 US 444 (1969). 25 Village of Skokie v National Socialist Party of America, 373 NE 2d 21(Ill S Ct, 1978) and New York Times v Sullivan 376 US 254 (1964). 26 Canada Act 1982 (UK) c 11, sch B pt I ('Canadian Charter of Rights and Freedoms') s 1; ’Victorian Charter’ (n 9) s 7; Human Rights Act 2004 (ACT) s 28. 27 Australian Capital Television v Commonwealth (1992) 177 CLR 106 (‘Australian Capital Television v Commonwealth’); Nationwide News v Wills (1992) 177 CLR 1. 28 Australian Capital Television v Commonwealth (n 27) 17. 29 Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 [67] (‘Attorney-General (SA) v Corporation of the City of Adelaide’). 30 Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (Report No 129, December 2015), 81. 31 Ibid 80 and APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 LR 322, 381. 32 Wotton v Queensland (2012) 246 CLR 1 [80]. 33 Attorney-General (SA) v Corporation of the City of Adelaide (n 29) [222]. 34 Ibid.
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 40
restriction.35 Therefore, it appears that ‘the permitted restrictions [in the HRA] are not relevantly different from the permitted limitations on the implied freedom of political communication’.36 What should Queensland do? Two polarised positions regarding reasonable limitations upon the freedom of expression have emerged; the incredibly broad American position, which abhors any content-based limitation upon the freedom of expression, and the rather narrow Australian implied freedom of political communication, limited to political communication necessary for the effective operation of representative and responsible government.37 The freedom of expression under s 21(2) should be interpreted by the courts as occupying the middle-ground between these positions; it extends to protect all content, not merely that which is political, but is subject to reasonable content-based limitations under s 13 that would not be permissible under the First Amendment. Article 19(3) of the ICCPR allows the freedom of expression to be restricted where necessary, for the respect of the rights or reputations of others, and for the protection of national security, public order or public health or morals.38 Although these restrictions are not included in the HRA, despite being included in the Victorian Charter, they should nevertheless inform the general application of the general limitation to s 21(2).39 Limitations on some offensive expressions should also be considered reasonable, particularly where the expression is ‘unquestionably antithetical to freedom, democracy and the rule of law that sustains our society’.40 Expressions which are vilifying are one example, as it is: ‘antithetical to the fundamental principles of equality, democratic pluralism and respect for individual dignity which lies at the heart of the protection of human rights’.41 However, expressions during public debate have increased value, because they are essential to create an informed citizenry, which is in turn vital to the functioning of a representative and responsible government. The requirement of reasonableness and proportionality thus lies at the heart of the operation of any limitations imposed upon the freedom of expression, noting the fundamental nature of the right in a free and democratic society. Conciliated Outcomes Under the HRA, a person may make a complaint to the Queensland Human Rights Commission42 for breach of s 21 by a public entity.43 If they satisfy the requirements outlined in s 65,44 the commissioner may conduct a conciliation conference45 in order to resolve the complaint in a way that is informal, quick and efficient.46 Noting that conciliation is only suitable for cases of minor misconduct and cannot set precedents, the process allows for ‘repair and improvement of public confidence’ in the relevant public entity.47 A complainant may be seeking a variety of conciliated outcomes, as any outcome that the parties agree to is available. For example: • In circumstances where a government employee is dismissed for posting controversial opinions on Facebook which are protected under s 21, the complainant may seek reinstatement or re- employment, or if the situation has become untenable, compensation.
35 McCloy v New South Wales [2015] HCA 34. 36 Muldoon v Melbourne City Council (2013) 217 FCR 450 [450], per North J. 37 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560. 38 ICCPR (n 3) art 19.3. 39 HRA (n 1) s 13. 40 Magee (n 11) [89]. 41 Alistair Pound and Kylie Evans, Annotated Victorian Charter of Rights (Thomson Reuters, 2nd ed, 2018) 145-146. 42 HRA (n 1) s 64. 43 Ibid s 9. 44 Ibid s 65. 45 Ibid s 79. 46 Ibid s 80. 47 Independent Broad-based Anti-Corruption Commission Committee, Parliament of Victoria, Inquiry into the external oversight of police corruption and misconduct in Victoria (Parliamentary Paper No 432, September 2018) 321.
Human Rights Act 2019 (Qld): A Guide to Rights Interpretation 41
• Alternatively, if a claimant was arrested for taking part in a peaceful protest in a manner that is protected by s 21, they may seek a conciliation conference with a representative of the Queensland Police Service (‘QPS’) to receive an apology for an infringement of their rights, or with the hope of the QPS agreeing to review crowd-control procedures, police training policies or compensation depending upon the severity of any harm. • Similarly, a person reprimanded by a University for expressing opinions or political views that are protected by s 21 could ask the University to devise and release guidelines on the parameters of speech protected by s 21, to further the University’s understanding of the freedom and make the parameters of protected speech clear to students and staff. Moreover, they may seek to be compensated or reinstated.48 • Regarding the implied right to access information under s 21, a person who is denied government- held information that is in the public interest or that they have a legitimate interest in may request a conciliation conference to seek access to that information.
48 Queensland Human Rights Commission, ‘Political belief or activity case studies’, Case Studies (Web Page, 31 January 2019)
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Section 22: Right to Peaceful Assembly
Jonathan McMillan and Sienna McInnes-Smith
‘22 Peaceful Assembly and Freedom of Association
(1) Every person has the right to peaceful assembly
(2) Every person has the right to freedom of association with others, including the right to form and join trade unions.’
Section 22 of the Human Rights Act 2019 (Qld) (‘HRA’) contains two limbs: the right to peaceful assembly in s 22(1) and the right to freedom of association in s 22(2). The wording of s 22 of the HRA is similar to that in arts 21 and 22 of the ICCPR and almost identical to art 11(1) of the European Convention on Human Rights (‘ECHR’), enacted by the European Union. However, art 11(2) of the ECHR, which states that the right to freedom of assembly must not be restricted in any way, is not included in s 22 of the HRA. Equivalent rights are also found in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’)1 and the Human Rights Act 2004 (ACT) (‘ACT Act’).2 These rights are closely related to other fundamental freedoms recognised in the HRA and in the common law, serving the same values that underpin our democracy. Interpretation Australian Jurisdictions The Queensland right is identical to that in the Victorian Charter and very similar to that in the ACT Act. The right to peaceful assembly has been interpreted in those jurisdictions as the right of individuals to gather for a common purpose or to pursue common goals, such as protesting or meeting.3 This includes gatherings in public or private, but does not include ‘assemblies’ of just one person.4 Although the original purpose of the right to peaceful assembly was to protect peaceful demonstration and participation in democratic processes, it has been recognised that the right may extend to assemblies of a social, cultural, religious, charitable or professional nature, as confining the right to political matters would be an ‘unacceptably narrow interpretation’ of the right.5 The freedom of association protects the right of all persons to voluntarily group together for a common purpose and to form and join an association.6 It applies to all forms of associations, specifically including trade unions. Not all organisations, however, constitute associations and the right will not be enlivened without an association to which it can attach. In the ACT, the freedom of association also includes the right not to join an association.7 The ACT Human Rights Commission has endorsed the case of Young, James and Webster v The UK, in which the European Court of Human Rights (‘ECtHR’) held that the notion of ‘freedom’ implies the exercise of choice.8 Thus, the freedom of association also encompasses its corollary: the freedom to not join an association, protecting people from being compelled to join groups to which they do not want to belong. Furthermore, the freedom does not give a right to join any association, as
1 Charter of Rights and Responsibilities Act 2006 (Vic) s 16 (‘Victorian Charter’). 2 Human Rights Act 2004 (ACT) s 15 (‘ACT Act’). 3 ACT Human Rights Commission, ‘Right to Peaceful Assembly and Freedom of Association (s.15)’ (Fact sheet)
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associations are able to administer their own affairs, set their rules of membership and decide upon admission and expulsion.9 At the Commonwealth level, the right to peaceful assembly and freedom of association are related to the implied right to freedom of political communication, given by ss 7, 24, 64 and 128 of the Australian Constitution. The implied freedom appears to receive the same protection as the rights in the Victorian Charter, as the permitted restrictions upon those rights have been held to be not relevantly different to those on the implied freedom,10 with the same proportionality analysis required when determining whether an infringement has occurred.11 International Jurisdictions Existing jurisprudence, particularly in relation to the right as expressed in the ECHR, supports the view that the right imposes a positive duty on public authorities to take reasonable and appropriate measures to ensure that the right to peaceful assembly can be exercised by, for example, protecting demonstrators from physical violence or setting up areas for people to peacefully assemble.12 However, the UN Human Rights Committee is divided as to whether the right as it is given in arts 21 and 22 of the ICCPR also protects the right to strike. While a majority has taken the view that it does not, the dissenting view has been expressed as follows: ‘the exercise of the right requires that some measure of concerted activities be allowed; otherwise it could not serve its purpose’.13 The latter view would appear to support the ECtHR’s rhetoric about the right giving ‘strong protection’ to the right of peaceful assembly and freedom of association. This is evident in Primov v Russia,14 where the ECtHR found that the ‘Government should not have the power to ban a demonstration because they consider that the demonstrator’s message is wrong’.15 The Court believed that this principle was especially relevant where the target of the criticism within the demonstration is the same authority which has the power to deny the public gathering.16 Thus, because the right encapsulates the public discussion of political matters within its protective ambit, it ‘must enjoy strong protection’17 and prohibiting a public assembly on the grounds of its ‘message’ will rarely be justified.18 In addition to containing a positive duty to provide for the freedom of association, the Universal Declaration on Human Rights also uniquely contains a negative right in art 20(2). The negative right provides that ‘No one may be compelled to belong to an association’.19 While the HRA contains no express equivalent, the freedom of association has also been interpreted by the ECtHR as encompassing a negative right, being the right not to join associations, including trade unions.20 Therefore, there is international jurisprudence which has been followed in the ACT (see above), supporting such an interpretation of the Queensland right. However, it seems that the negative right does not generally extend to the compulsory membership of a professional body, particularly if the association is a professional regulator.21 That is because professional organisations requiring compulsory membership for an individual to practice within the profession are not
9 The ACT Human Rights Commission here follows Cheall v United Kingdom (1985) 42 Eur Comm HR 178. 10 Wainohu v New South Wales (2011) 243 CLR 181 [112] per Gummow, Hayne, Crennan and Bell JJ. 11 Muldoon v Melbourne City Council [2013] FCA 994 [450] per North J. 12 Platform 'Arzte für das Leben' v. Austria (1988) 126 Eur Court HR (ser A); (1991) 13 EHRR 204. 13 JB v. Canada, Human Rights Committee, Communication No 118/1982, UN Doc. CCPR/C/28/D/118/1982 (18 July 1986). 14 Primov v Russia (European Court of Human Rights, 17391/06, 12 June 2014). 15 Ibid [135]. 16 Ibid. 17 Ibid. 18 ‘Case Digest: ECHR Decisions on Demonstrations, Riots and Protests: January 2013 – October 2014,’ Open Society Justice Initiative (case digest) 4
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considered ‘associations’, as they are typically founded by the legislature and serve a public function, safeguarding professional standards.22 This means that a Queensland professional person would not be able to rely on s 22 to justify their refusal to join such a regulatory body. Note that in Australia, the Fair Work Act 2009 (Cth) provides that persons are free to not become members of industrial associations.23 Limitations There are several limitations which have been applied to the rights contained in s 22 in other jurisdictions. While s 22 is very similar to the right contained in art 11 of the ECHR, it does not adopt art 11(2) of the ECHR, also identically represented in art 22(2) of the ICCPR. Those articles prevent the right from being limited except in circumstances that: ‘are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others’. These limitations are narrower and more specific than the general allowance for limitations given in s 13 of the HRA, those that are ‘reasonable and demonstrably justifiable’. They therefore implement a vital limitation on public entities, but perhaps give stronger protection against them than the Queensland right. It should be remembered that it is a fundamental feature of a democratic society that the people are free to raise awareness about matters of serious public concern, particularly by way of public assembly and association. This means that the narrower European limitations should be given weight when considering whether a limitation under s 13 of the HRA upon s 22 is reasonable and demonstrably justifiable, particularly so when considering the interaction of the right with the Peaceful Assembly Act 1992 (Qld) (‘PAA’) which regulates peaceful assemblies in Queensland. The Peaceful Assembly Act 1992 (Qld) Under the PAA, the right to peaceful assembly is more specifically limited than under the HRA, being ‘subject only to such restrictions as are necessary and reasonable in a democratic society in the interests of public safety, public order or the protection of the rights and freedoms of other persons’. Because the PAA must be interpreted consistently with the HRA, the way in which the right is interpreted in the latter will affect the way in which the powers under the former are exercised. Therefore, when the Commissioner of Police is considering whether to give permission for an assembly to occur under the PAA,24 they must consider the rights, and any reasonable limitations, that apply under the HRA. Proportionality While the need to apply for authorisation to assemble is not itself a violation of the right, particularly if it allows public authorities to ensure that the meeting remains peaceful,25 disproportionate limitations may constitute violations where they fail to correctly balance the right with the purpose of the limitation. One example is the case of Bukta v Hungary, in which the organisers of an assembly were unable to comply with a three-day notice requirement because the demonstration had been organised in response to the Prime Minister’s announcement that he would be attending a particular function the following day.26 The court held that in dispersing the peaceful assembly because of the inability to provide sufficient notice, the authority had disproportionately restricted the right to peaceful assembly.27 However, in Appleby v United Kingdom, the ECtHR found that not permitting an environmental group to petition in a privately owned shopping centre did not infringe their right to peaceful assembly as they had the option of petitioning elsewhere.28 Therefore,
22 Le Compte v Belgium [1981] ECHR 3. 23 Fair Work Act 2009 (Cth) s 346. 24 Peaceful Assembly Act 1992 (Qld) s 10-13, particularly s 11 which does not oblige the Commissioner to attach conditions to a notice permitting the assembly. 25 Rassemblement Jurassien and Unite Jurassienne v Switzerland (1979) 17 Eur Comm HR 108 [3]. 26 Bukta v Hungary [2007] ECHR 25691/04. 27 Ibid [38]. 28 Appleby v United Kingdom [2003] ECHR 222.
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correctly balancing competing rights and interests is essential to achieving a proportionate restriction of the right where necessary. Conciliated Outcomes The following are conciliated outcomes which a client may seek when making a complaint about a public entity under on s 22 of the HRA. • Where the complainant has had their right to peaceful assembly violated by an act of the Commissioner of Police, they may seek an undertaking by the commissioner to revise their approach to authorising public assemblies. This may require the Commissioner to include other people in the decision-making process under ss 11 and 13 of the PAA, for example an independent advisory committee, to improve the application process and ensure an unbiased outcome (by preventing demonstrations from being prohibited due to their ‘message’). This would be particularly important if the complainant regularly organised public assemblies regarding political matters. The complainant may also require the Commissioner to pay compensation to the organisers of such an event, and any legal fees incurred. Public assemblies are often organised by volunteer groups, who lack the resources to seek advice on or defend their rights. • Additionally, the Commissioner could also apologise to the organisers of a disallowed or banded public assembly. Public protests often involve passionate people protesting emotive issues. The refusal or curtailment of their right to express themselves on this issue might have led to a great deal of offence and anger. By apologising, the Commissioner may ameliorate some of that anger, and show respect for their rights and concerns. This is particularly so where an assembly has been disbanded and any recalcitrant members unlawfully arrested for continuing to protest without permission. By issuing an apology, the Commissioner may save the police force the cost defending allegations of unlawful imprisonment. • Furthermore, the conciliation process could be used as an informal, friendly space within which the Commissioner could communicate their concerns over the demonstration, and the organisers could articulate their objections to any conditions which have been imposed. A conciliated agreement could be reached which authorised the assembly, with any appropriate conditions outlined. By giving the protestors a greater say in the negotiation process, it may make them more willing to comply with the resulting conditions. • Finally, where the complainant has had their freedom of association violated, they may wish to receive an apology from the offending public entity, recognising any hurt caused to the complainant by the violation. They may also request compensation to remedy the violation, allowing them to join the association (such things often require payment of a membership fee). Further, were Queensland to adopt the ACT’s interpretation of the freedom as importing both a positive and negative right, a complainant who has been unwillingly compelled to join an association may be freed from that obligation and may seek compensation (for example for their membership fees).
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Section 23: Right to Take Part in Public Life
Frankie Harris
‘23 Taking part in public life
(1) Every person in Queensland has the right, and is to have the opportunity, without discrimination to participate in the conduct of public affairs, directly or through freely chosen representatives.
(2) Every eligible person has the right, and is to have the opportunity, without discrimination—
(a) to vote and be elected at periodic State and local government elections that guarantee the free expression of the will of the electors; and
(b) to have access, on general terms of equality, to the public service and to public office.’
Section 23 of the Human Rights Act (Qld) (‘HRA’) relates to the right to take part in public life. The section creates two different classes of rights holders. First, every person in Queensland,1 and secondly, every eligible person in Queensland.2 This is consistent with s 18 of the Charter of Human Rights and Responsibility (‘Victorian Charter’)3 and is analogous to the Human Rights Act 2004 (ACT) (‘ACT Act’).4 Although the ACT Act does differ slightly in its terminology, the scope of the right remains comparable. Therefore, s 23 appears to create ‘three different, but overlapping rights’.5 Interpretation Right to Participation The first limb of s 23 is applicable to all people in Queensland regardless of citizenship, age, or incarceration. It states that every person has the right to participate in ‘public affairs’. The importance of s 23(1), hence, lies within the meaning of ‘public affairs’. The HRA does not define ‘public affairs’, so international and domestic jurisprudence may be utilised in interpreting its meaning,6 particularly as s 23 is directly based upon art 25 of the International Covenant on Civil and Political Rights (‘ICCPR’).7 ‘Public affairs’ in art 25 of the ICCPR is interpreted as extending to all features of public administration, including the exercise of legislative, executive and administrative powers.8 This wide ambit given to its interpretation is further highlighted through the availability of both direct and indirect participation. Examples of direct participation include participating in popular assemblies, public debate and the ability to pose a question at council consultations. Indirect participation is achieved through ‘freely chosen representatives’9 and involves the exercise of governmental powers and the implementation of
1 Human Rights Act 2019 (Qld) s 23(1) (‘HRA’). 2 Ibid s 23(2). 3 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 18 (‘Victorian Charter’). 4 Human Rights Act 2004 (ACT) s 17 (‘ACT Act’). 5 ACT Human Rights Commission, ‘Collation of Factsheets on each right under the ACT Human Rights Act 2004’ (Fact sheet, February 2015) 27. 6 Acts Interpretation Act 1954 (Qld) s 14B; Simeon Beckett, ‘Interpreting Legislation Consistently with Human Rights’ (2007) 58 Australian Institute of Administrative Law Forum 43, 44. Here, it is determined that both the ACT Act and the Victorian Charter encourage international jurisprudence. 7 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 25. See also Explanatory Note, Human Rights Bill 2018 (Qld), 21. 8 UN Human Rights Commission, General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service, 57th sess, UN Doc CPR/C/21/Rev.1/Add.7 (12th July 1996) (‘General Comment No 25’). 9 HRA (n 1) s 23(1).
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policy decisions.10 The capacity of the chosen representatives is limited only to exercising the specific powers allocated to them,11 reflecting the ‘indirect’ nature of their role. It is important to note that s 23(1) does not include the right to social or community life,12 nor the general right to access private information related to public affairs.13 However, the right to participate in public affairs is inherently linked to other provisions in the HRA, namely, the freedom of movement,14 freedom of expression,15 the right to peaceful assembly and freedom of association.16 Therefore, claims brought under s 23 may involve consideration of those related provisions. Right to vote The Right to Elect The right to vote under s 23(2)(a) does not include the right not to vote. To be declared an ‘eligible person’ under this right, the person must be on the electoral roll,17 and therefore an Australian citizen over the age of 18.18 In Queensland, prisoners serving a sentence of more than three years are disenfranchised.19 Queensland is the only state in Australia to disallow prisoners to vote at state and local government elections, and this limitation will need to be considered reasonable and justifiable under s 13(1) if it is comply with the HRA. In order to give effect to the right, the Queensland government must ensure every eligible person has the capability to exercise their vote. Examples of procedures relevant to achieving this include disability access;20 literacy and elder assistance; and voter education. The UN Human Rights Commission (‘HRC’) has said that sufficient information should be readily available in regards to both the voting process and the candidates.21 In addition to these active measures, the right requires that elections are conducted on a periodic basis with the voters being capable to vote for any candidate with the use of their free will. The Right to be Elected The right to be elected is deemed a ‘passive electoral right’.22 The protection it gives to ‘eligible people’ is not as stringent. Here ‘eligible people’ is limited through the Parliament of Queensland Act 2001 (Qld) where it is declared that imprisonment can alter one’s eligibility status.23 This right ensures eligible voters can realise the ‘free choice and election of candidates’.24 The Right to Access the Public Service and Office While the definition of an ‘eligible person’ is clear when considering the right to vote, it is less clear how it applies to the right to access the public service and office. It seems this is determined by relevant legislation. The terms ‘public service’ and ‘public office’ are not defined in the HRA. However, under international law ‘public service’ encompasses all positions within the executive, judiciary, legislature, and other branches of
10 General Comment No. 25 (n 8) [5]. 11 Victorian Government Solicitor’s Office, ‘Charter Guidelines. Section 18: Taking Part in Public Life’, Charter of Human Rights and Responsibilities Guide (Web Page, 2017)
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state administration and ‘public office’ is not notably different.25 In Queensland, the ‘public service’ is more narrowly defined as the Queensland Public Service, consisting of persons employed under the Public Service Act 2008 (Qld).26 The term ‘public office’ would therefore appear to be broader than ‘public service’ under the HRA, encompassing other office holders, such as the judiciary, members of Parliament and holders of office in other areas of administration. In international human rights law, the HRC has interpreted the right to access the public service and office as providing a right of access, on general terms of equality, to positions in the public service and in public office. This appears to import a positive duty, whereby: ‘affirmative measures may be taken in appropriate cases to ensure that there is equal access to public service for all citizens. Basing access to public service on equal opportunity and general principles of merit, and providing secured tenure, ensures that persons holding public service positions are free from political interference or pressures’.27 Affirmative measures may include recruitment of indigenous persons or persons with a disability. To ensure compliance with the right, appointment, promotion, suspension and dismissal processes within the public service must be objective and reasonable. Although the object of this system is to ensure the integrity and authenticity of the public service, the inclusion of this right in the HRA makes equal opportunity and anti- discrimination policies fundamental to public life. Conciliated Outcomes While s 23(1) does not create a right to a remedy,28 the right does require that public authorities act positively to ensure every person can exercise this right of participation. This may require adequate disability services and translated documents being made available in spaces of public debate. In the event of an infringement of the right, the most beneficial conciliated outcomes would be: • An apology or statement of regret from the responsible public entity to the claimant, acknowledging their wrongdoing and/or the hurt caused; • The review and implementation of anti-discrimination policies to avoid future infringements; • That the responsible public authority develop a range of accessible resources, such as in documents available in foreign languages or for sight-impaired people, that outline the importance of participation so that every person in Queensland can fully appreciate their role in and ability to participate in public affairs. Where a complainant’s right to vote has been infringed, it is unlikely the infringement will be able to be rectified due to the time dependent nature of voting. However, a conciliated outcome may be requested by the complainant or offered by the relevant public entity. Such outcomes may include: • An apology, possibly followed by rectification of the complainant’s position to exercise their rights and position relating to the voting franchise in time for the next election; • A re-education process applicable to the relevant entity. This is of the utmost importance due to the foundation of democratic societies upon the voting system and may require a change in policy to ensure all eligible voters are educated on their rights to vote and have those rights upheld. Where the right to be elected has been infringed, a complainant may request an apology and financial compensation, though they are most likely to ask for an apology and acknowledgment of eligibility to become a candidate for elections.
25 ACT Human Rights Commission (n 5). 26 Public Service Act 2008 (Qld) s 5. 27 General Comment No. 25 (n 8) [23]. 28 Victorian Government Solicitor’s Office (n 11).
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Where a complainant has had their right to access the public service or public office violated, an apology is likely to be desired by the complainant in the conciliation process, in addition to the restoration of a position or making an offer of employment.29 Likewise, compensation for financial loss may also be required where the complainant was suspended without pay.
29 ‘Australian Human Rights Commission’, Understanding and Preparing for Conciliation – Unlawful Discrimination (Web Page, 14 December 2012)
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Section 24: Property Rights Elizabeth Aisi and Laura Rowswell
‘24 Property rights
(1) All persons have the right to own property alone or in association with others.
(2) A person must not be arbitrarily deprived of the person’s property.’
There are two limbs contained in s 24: the right to own property and the right not to be arbitrarily deprived of property. The primary purpose of this right is to protect ‘a person from having their property unlawfully removed’.1 Queensland distinguishes itself from other jurisdictions, both domestic and international, by specifically including ownership as a limb. This right is unique because it is the only one drawn directly from the Universal Declaration of Human Rights (‘UDHR’); it mirrors art 17.2 Property rights have long been recognised by Australia’s common law. Justice Kirby has espoused them as ‘important civic rights’ that are an ‘attribute of economic liberty’.3 The drafters of the UDHR recognised that property rights were influential in facilitating other human rights like the right to security and self-determination.4 However, analysis of the drafting process for art 17 of the UDHR reveals the tension between state parties regarding the type of property that was protected and the type of interference it was protected from.5 Although there are no provisions solely dedicated to property in the International Covenant on Civil and Political Rights (‘ICCPR’) or the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’),6 the European Convention on Human Rights (‘ECHR’),7 and the Human Rights Act 1998 (UK) (‘UK Act’)8 contain similar provisions. Why have property rights? Property rights serve two essential purposes: they enable people to realise ‘their economic human rights’ and they ‘preserve… human dignity’.9 Although property rights are not included in the ICCPR or ICESCR, their importance has ‘resurfaced’ in continuing debates about ‘indigenous peoples, extreme poverty, and women’s equality’.10 Recognising a right to property is ‘a purpose of the civil and criminal law’ that protects ‘the personal integrity of the individual,’ and is ‘encompassed by the principle of legality’.11 Human rights to property are a ‘tool for positive freedom’ that work to ‘satisfy basic needs and expectations’ of all citizens.12 They inform other essential human rights, like that of privacy13 and, if understood as a ‘means of survival,’ the right to life.14
1 Explanatory Notes, Human Rights Bill 2018 (Qld) 22 (‘Explanatory Notes’). 2 Ibid 21. 3 Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118, 125-126. 4 William Schabas, ‘Omission of the Right to Property in the International Covenants’ (1991) 4 Hague Yearbook of International Law 135, 160. 5 Ibid 146-147. 6 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 20. 7 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) article 1 of protocol 1. 8 Human Rights Act 1998 (UK) article 1 of protocol 1. 9 Rhoda E. Howard-Hassmann, ‘Reconsidering the Right to Own Property’ (2013) 12(2) Journal of Human Rights 180, 183. 10 William A. Schabas, The European Convention on Human Rights: A Commentary (Oxford University Press, 2015) 959. 11 PJB v Melbourne Health and Another (Patrick’s Case) (2011) 39 VR 373, 397 [93]-[94] (‘Patrick’s Case’). 12 Laura Dehaibi, ‘The Case For an Inclusive Human Right to Property: Social Importance and Individual Self-realization’ (2015) 6(1) Western Journal of Legal Studies 1, 2. 13 Howard-Hassman (n 9) 190. 14 Harvey M. Jacobs, ‘Private Property and Human Rights: A Mismatch in the 21st Century?’ (2013) 22 International Journal of Social Welfare S85, S97.
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What type of property? The Human Rights Act 2019 (Qld) (‘HRA’) does not provide a definition of ‘property’. The Acts Interpretation Act 1954 (Qld) (‘AIA’) defines property in the broadest of terms as ‘any legal or equitable interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action’.15 The High Court of Australia emphasised that there was no definitive test when determining if an interest is ‘property’, however, assignability is a significant part of property.16 For example, in HIC v Perverill, the High Court held that a statutory benefit conferred on a pathologist was not property because it could not be transferred or converted into any kind of property and had no stability or degree of permanence.17 Intellectual property, such as trademarks and copyrights, are important to distinguish from corporeal property because unlike the latter, ‘they do not exist in nature,’ but are ‘the products of legislative intervention’.18 In Europe and the United Kingdom, the word ‘possessions’ has an ‘autonomous meaning’ that is ‘not limited to ownership of physical goods’ but extends to ‘certain other rights and interests constituting assets’.19 Therefore, non-physical assets such as intellectual property, licenses, and fishing rights all fall under this provision.20 In Queensland, liquor licenses were deemed to be property, for the purpose of the definition in the AIA and under the UDHR, as they are ‘valuable’ and identifiable ‘assets’ and legal or equitable interests in them can be transferred.21 Crucially, the HRA does not affect native title rights and interests. It states (at s 107) that its provisions must be interpreted in a way that does not prejudice native title rights and interests that are protected by the Native Title Act 1993 (Cth).22 Accordingly, the HRA is not intended to be a ‘future act’ under the Native Title Act 1993 (Cth).23 The Positive Right: The Right to Own Property The right to own property, and the peaceful enjoyment of it, is ‘an ancient feature’ of the common law and is ‘inherent in every person’.24 These are ‘fundamental common law right[s]’ that are essential to the ‘application of the principle of legality’.25 As such, the protection of property rights is ‘available to companies as well as to natural persons’.26 It is crucial to note, however, that property rights do not automatically vest in individuals with property.27 Instead, these rights ‘suggest that the accumulation of property’ - that is, owning property which goes beyond necessity - is not ‘justified by human rights’ and therefore ‘not protected by them’.28 Similar to Victoria and Queensland, art 1 of the Protocol to the ECHR does not ‘enshrine a right to acquire property’.29 Ownership includes, but is not limited to, the power to have ‘management and control’ and the ‘power of sale’.30 Furthermore, ownership includes the ‘free use, enjoyment and disposal’ of property ‘without any control of diminution’, but is strictly limited to ‘the laws of the land’.31 When assessing matters concerning disputed property interests, it is permissible for the courts to consider an applicant’s ‘legal position’.32 Additionally, courts
15 Acts Interpretation Act 1954 (Qld) Schedule 1 (‘AIA’). 16 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 166. 17 Health Insurance Commission v Peverill (1994) 179 CLR 226, 243-244. 18 R (British American Tobacco UK Ltd) v Secretary of State for Health [2016] EWCA Civ 1182, [31]. 19 Iatridis v Greece (European Court of Human Rights, Grand Chamber, Application No 31107/96, 25 March 1999) [54]. 20 ‘Guide on Article 1 of Protocol No. 1 to the European Convention on Human Right: Protection of Property’, European Court of Human Rights (Guide, 31 December 2019)
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have held that, alongside existing possessions,33 ownership of future property can in certain circumstances be protected. This can apply when a person has a ‘legitimate expectation’ of ‘obtaining an “asset”’.34 A ‘legitimate expectation’ has been defined as being ‘of a nature more concrete than a mere hope’ and must be ‘based on a legal provision or a legal act such as a judicial decision’.35 Crucially, when assessing the existence of a legitimate expectation, courts do not ‘apply the concepts of “genuine dispute” and “arguable claim”’.36 Under the ECHR, courts have stated that a person who complains of a violation of their property rights must ‘show that such a right existed’, ‘establish the precise nature of the right in the national law’, as well as his or her ‘entitlement to enjoy it’.37 Some academics further argue that human rights to property are not limited to ownership, but extend to the ‘freedom to trade property, alter its use, or improve its value’.38 The Negative Right: The Right to Not Be Deprived of Property Meaning of ‘Arbitrarily’ The High Court in Mabo v Queensland [No 1] interpreted ‘arbitrary’ to mean both ‘illegally’ and ‘unjustly’.39 Deprivation is not arbitrary where there is an ‘appropriate relationship between means and ends’ and where laws are ‘appropriate and adapted to a legitimate purpose’.40 ‘Arbitrary’ also captures conduct that is ‘capricious,’ ‘unpredictable,’ ‘unreasonable,’ and not in proportion to the legitimate aim sought.41 Meaning of ‘Deprived’ Deprivation can be interpreted differently depending on the property in question. For example, unlike corporeal property, the ‘infringement of intellectual property rights does not exhaust the property itself’.42 To be more specific, if a person took possession of another’s land or car, the latter party would be entirely deprived of its use.43 In contrast, if the case concerned a person’s invention or trademark, they would not necessarily be deprived of continuing to use it.44 Patrick’s Case dealt with a case where the realities of the situation had the practical effect of depriving Patrick of his property.45 Although there was no formal taking of property, the appointment of an administrator removed Patrick’s capacity to exercise control over his own property including, most importantly, the power of sale. This was deemed to be a de facto deprivation.46 This reasoning was highly influenced by the jurisprudence on the First Protocol to the ECHR which the member noted had a wider scope of property rights and included the right to ‘peaceful enjoyment of possessions’,47 however the High Court has tended to take a cautious approach to the use of extrinsic material.48 Swancom Pty Ltd v Yarra CC (‘Swancom’) was another case where there existed no formal removal of property, but property rights were addressed in a more perfunctory manner than in Patrick’s Case. The tribunal agreed that as a public authority it was bound to take Victoria’s Charter into consideration when making decisions under its review jurisdiction.49 The tribunal held that the Council’s refusal of Swancom’s application
33 A1P1 Guide (n 20) 7. 34 Anheuser-Busch Inc v Portugal (European Court of Human Rights, Grand Chamber, Application No 73049/01, 11 January 2007) [65]. See also J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v United Kingdom (European Court of Human Rights, Grand Chamber, Application No 44302/02, 30 August 2007) [61]. 35 A1P1 (n 20) 9. 36 Schabas (n 10) 969. 37 A1P1 (n 20) 9. 38 Tim Wilson, ‘Property Rights Are Human Rights’ (2015) 67(2) Review - Institute of Public Affairs 28, 31. 39 Mabo v Queensland (1988) 166 CLR 186, 217. 40 Aurukun (n 21) 9 [45]-[50]. 41 Patrick’s Case (n 11) [85]. 42 R (British American Tobacco UK Ltd) v Secretary of State for Health 30 Nov 2016 [2016] EWCA Civ 1182, CA [31]. 43 Ibid. 44 Ibid. 45 Patrick’s Case (n 11) [89]. 46 Ibid [92]. 47 Ibid [88]-[89]. 48 Momcilovic v The Queen (2011) 245 CLR 1, 36 [18]-[22] (‘Momcilovic’). 49 Swancom Pty Ltd v Yarra CC [2009] VCAT 923, [21]-[22] (‘Swancom’).
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to amend a planning permit did not deprive Swancom of any ‘legal or proprietary interest in the land’ or the opportunity and ‘ability to develop its land in accordance with the relevant planning framework’.50 Therefore, ‘deprivation’ was narrowly construed.51 Internationally, deprivation is only permitted ‘if it is in the public interest’ and compensation may be awarded to an aggrieved party.52 European judges will often ‘look behind the appearances and investigate the realities of the situation complained of’.53 Courts acknowledge, however, that the ‘distinction with deprivation… is not always evident’ and, consequently in practice, while parties may agree that art 1 of Protocol 1 ‘applies,’ they may disagree as to whether the case concerns ‘deprivation or merely… control’.54 Limitations The HRA states that human rights may be subject to reasonable and justifiable limits under law.55 The case of Aurukun involving the cancellation of liquor licenses of indigenous canteens as part of alcohol reforms targeting disadvantaged Indigenous communities illustrates this weighing exercise.56 The legitimate public interest was to protect community members from alcohol-fuelled violence,57 and the legislature had calculated that the ‘right to security of the person and protection by the State’ outweighed the property rights of the canteen.58 Keane JA confirmed that Parliament is best placed to balance competing human rights and courts cannot override Parliament with their own view of what is more reasonable.59 Conciliated Outcomes Pursuant to sections 79 and 80 of the HRA, conciliation is available to persons who wish to make a complaint on the basis of their human rights. Conciliation aims to be ‘informal, quick and efficient’60 and works to ensure complainants’ matters are dealt with fairly and in an effective manner. Although there are few property-specific conciliation disputes, property can fall under other human rights areas such as discrimination based on disability, age, or race, respectively.61 The Explanatory Notes make clear that the property rights provision does not provide a right to compensation.62 However, this does not preclude compensation being an outcome that can be sought due to the flexibility of conciliation.63 Compensation could include: ● Compensation for economic loss (for example, when trading hours are regulated and restricted).64 ● Compensation for loss of earnings with cases involving motor vehicle impounding where that vehicle is required for work or trading activities. ● Community funding and development: In Aurukun, the Queensland Government did not offer direct compensation to the claimants and instead funded community services that were previously funded by the licensed canteens that had their liquor licenses cancelled.65
50 Ibid. 51 Ibid. 52 Charles Harpum, ‘Property Law: The Human Rights Dimension: Part 2’ (2000) 4(2) Landlord & Tenant Review 29, 31. 53 Schabas (n 10) 975. 54 Ibid 979. 55 HRA s 13. 56 Aurukun (n 21) 9 [45]-[50]. 57 Ibid [5]. 58 Ibid [269]. 59 Ibid [65], [156]-[169]. 60 HRA s 80. 61 ‘Conciliation Register’, Australian Human Rights Commission (Web Page, 14 December 2012)
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● If return of property cannot occur, then a portion of proceeds of sale of the property may be offered to prevent hardship.66 ● Compensation for stress, humiliation, loss of dignity particularly for eviction cases.67 A common outcome of conciliation is an apology and acceptance of responsibility given by the public authority with the assurance that they will have policies in place to avoid a situation occurring again.68 The Explanatory Notes state that discussion and education around human rights is the favoured regulatory model.69 As rights are not absolute and there may be other considerations that have higher importance, there will be cases where limiting a person’s right is justified. Explanation and education from the public entity to the person as to the decision that was made could give the client reassurance that the public entity genuinely considered their rights. Where there has been a lawful and appropriate prohibition of activity in an area, offering an alternative area may be helpful.70 There is utility in conciliation for decisions made by guardians and administrators, to persuade them to take a less restrictive approach to achieve their purpose.71
66 DPP v Ali (No 2) [2010] VSC 503 2, [9] (‘Ali’). 67 ‘Impairment Case Studies,’ Queensland Human Rights Commission (Case Studies, 3 March 2020)
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Section 25: Right to Privacy and Reputation
Savannah Kuylaars
‘25 Privacy and Reputation
A person has the right—
(a) not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
(b) not to have the person’s reputation unlawfully attacked.’
The right to privacy has been understood as the ‘right to be let alone by other people’.1 There is no clearly established or independently enforceable right to privacy at common law in Australia,2 and the state of authorities remains unclear.3 Despite this, protection of privacy is provided for in a number of statutes in Queensland and at the Commonwealth level.4 The Human Rights Act 2019 (Qld) (‘HRA’) introduced a right to privacy in Queensland, allowing Queenslanders to be free from unlawful or arbitrary interference with privacy, family, home or correspondence and unlawful attack upon reputation.5 Interpretation A court may be informed by international and domestic jurisprudence when interpreting provisions,6 as directly expressed in the Act.7 Internationally, the right to privacy exists in the Universal Declaration of Human Rights8 and the International Covenant on Civil and Political Rights (‘ICCPR’).9 The Queensland provision mirrors art 17 of the ICCPR,10 to which Australia is a party,11 however, minor differences exist, being the exclusion of ‘honour’ and subsection 2.12 Domestically, jurisprudence concerning s 13 of the Victorian Charter of Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’)13 offers significant insight, particularly the judgments of Bell J,14 who found in Sudi15 that the right protects:
1 Hunter v Southam Inc [1984] 2 SCR 145, [24]. 2 AIT18 v Australian Information Commissioner (2018) 363 ALR 281, 302 [83]. See Wainwright v Home Office [2004] 2 AC 406. 3 WBM v Chief Commissioner of Police (2012) 43 VR 446, [81]. See, eg, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; Grosse v Purvis [2003] QDC 151; Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479. 4 See Right to Information Act 2009 (Qld); Information Privacy Act 2009 (Qld); Public Records Act 2002 (Qld); Invasion of Privacy Act 1971 (Qld); Privacy Act 1988 (Cth); Telecommunications Act 1997 (Cth); Do Not Call Register Act 2006 (Cth). See also Australian Privacy Commissioner, Federal Privacy Handbook: A Guide to Federal Privacy Law and Practice (Redfern Legal Centre Publishing, 1993). 5 Human Rights Act 2019 (Qld) s 25 (‘HRA’). 6 Momcilovic v R (2011) 245 CLR 1, 36-7 [18]-[19]. 7 HRA (n 5) s 48(3). 8 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) art 12. 9 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’). See also Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 8 (‘ECHR’). See also Human Rights Act 1998 (UK) art 8; Campbell v MGN Ltd [2004] UKHL 22; MA v Director of Immigration [2012] HKCA 514, [58]-[67]. 10 Explanatory Notes, Human Rights Bill 2018 (Qld) 22 (‘Explanatory Notes’). 11 ICCPR (n 9) art 17(2). 12 Malone v United Kingdom (1981) 4 EHRR 330. 13 Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’). 14 See, eg, PJB v Melbourne Health and Another (Patrick’s Case) (2011) 39 VR 373; Kracke v Mental Health Review Board and Others (2009) 29 VAR 1; Director of Public Prosecutions v Kaba and Another (2014) 44 VR 526; Director of Housing v Sudi [2010] VCAT 328; Jurecek v Director, Transport Safety Victoria [2016] VSC 285; ZZ v Secretary, Dept of Justice [2013] VSC 267. 15 Director of Housing v Sudi (n 14).
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‘[…]-those-attributes-which-are-private-to-all-individuals,-that-domain-which-may-be-called-their- home, the-intimate-relations-which-they-have-in-their-family-and-that-capacity-for- communication-(by-whatever-means)-with-others-which-is-their-correspondence’.16 Privacy Privacy should be interpreted in the context of dignity and the free, unhindered development of one’s personality.17 It embodies individual identity, personal development, meaningful social relations and physical and psychological integrity.18 In this respect, the right to privacy underpins other fundamental rights.19 The term ‘privacy’ encompasses bodily, territorial, communications, information, and location privacy.20 An important qualification of ‘private’ is whether the individual reasonably expected privacy. In Good Guys,21 a conversation secretly recorded in a public shop was held not to be private communication.22 The conversation occurred in the television area of a retail store and was capable of being heard by others, meaning that it was not reasonable for the speaker to expect that her words would only be heard by the person she was addressing.23 Interference with the right has applied to restrictions upon employment, where an individual’s capacity to experience private life, including relationships, is restricted.24 More recently, ‘privacy’ has been interpreted to include protection of self-determination, personal autonomy and personal inviolability with respect to physical or psychological interference, including medical treatment.25 Access to knowledge of personal information possessed or used by public agencies is also critical to the protection of privacy.26 Family and Home Under the ICCPR, ‘family’ takes the meaning given by the concerned State,27 and operates to protect the privacy of existing intimate family relations.28 In Australia, the courts would be likely to expand traditional legal interpretations of ‘family’29 in light of modern considerations such as blended families and de facto relationships.30 The right offers the protection of security and autonomy of an individual in their home,31 for which sufficient and continuous links with the place must be demonstrated.32 This is a question of fact not law.33 In Sudi,34 examples of interferences with home were held to include every invasion of the sphere of ‘home’ that occurs without the consent of the individual affected: evicting or seeking to evict someone living in social housing; serving a notice to quit and bringing possession proceedings and any other decisions
16 Ibid [29]. 17 Joseph Cannataci, Report of the Special Rapporteur on the Right to Privacy, UN Doc A/HRC/31/64 (24 November 2016) [24]. 18 Kracke v Mental Health Review Board and Others (2009) 29 VAR 1, [619]-[620]. 19 Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era (Final Report No 123, 2014) 30 [2.6]. 20 Victorian Government Solicitor’s Office, Charter Guidelines (2017). 21 Director of Consumer Affairs Victoria v Good Guys Discount Warehouses (Australia) Pty Ltd; Director of Consumer Affairs Victoria v Parke Muir’s Pty Ltd (2016) 334 ALR 600. 22 Ibid [124]. 23 Ibid. 24 ZZ v Secretary, Dept of Justice [2013] VSC 267, [87]. 25 PBU & NJE v Mental Health Tribunal and Others (2018) 56 VR 141, [127]-[128]. 26 Human Rights Committee, General Comment No 16: Article 17 (Right to Privacy) The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 32nd sess, UN Doc HRI/GEN/1/Rev.9 (8 April 1988) [10] (‘General Comment No 16’). 27 Ibid [5]. 28 Castles v Secretary of the Department of Justice and Others (2010) 28 VR 141, [81]. It does not, however, create a positive right to found a family. 29 Fehlberg, B and Behrens, J, Australian Family Law: The Contemporary Context (Oxford University Press, 2008) 145. 30 Victorian Government Solicitor’s Office (n 20). See, eg, Human Rights Committee, Merit: Communication No 201/1985, UN DOC CCPR/C/33/D/201/1985 (12 August 1988). (‘Hendriks v Netherlands’). 31 Patrick’s Case (n 14) [55]. Cf AC (Guardianship) [2009] VCAT 1186. 32 Director of Housing v Sudi (n 14) [32]. 33 Ibid. 34 Ibid.
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which deprive a person of, or impair their capacity, to live in their home, including denying planning permission, undertaking enforcement measures and withdrawing a permission already held.35 Correspondence Correspondence encompasses written and verbal communication containing private information.36 Under the equivalent provision in the ICCPR, States are obliged to ensure private information does not reach persons who are not lawfully engaged to receive or use it.37 This requires ensuring the integrity and confidentiality of communications, including via physical and digital surveillance.38 Although mass surveillance of communications may be an effective and legitimate security tool, it may also interfere with privacy,39 thus requiring the State to demonstrate it is neither arbitrary nor unlawful in the interests of aims such as national security.40 Importantly, the obligation arises regardless of the nationality or location of individuals.41 Arbitrary or Unlawful Interference Parliament’s use of the adjective ‘unlawful’ means that no interference can take place unless envisaged by law.42 Domestically, ‘lawful’ has been further interpreted to mean identifiable and expressed with sufficient precision in an Act of parliament, subordinate legislation or common law.43 However, the inclusion of ‘arbitrary’ indicates that lawful interferences may still violate the right.44 The use of the term ‘arbitrary’ operates to prohibit interferences that are not in accordance with the aims of the ICCPR or ‘reasonable in the circumstances’.45 The term connotes an absence of reasonableness, procedural fairness or proportionality.46 Further jurisprudence speaks to principles of legality, predictability with respect to the rule of law, necessity to achieve a legitimate aim, and proportionality with respect of achieving that aim.47 Importantly, the Queensland right prohibits interferences only by public entities.48 ‘Interference’ can also be particularised as disturbance or unwanted involvement.49 In Patrick’s Case,50 arbitrary interferences were interpreted as ‘capricious, unpredictable or unjust’ as well as unreasonable. 51 Toonen52 explained that an assessment of ‘reasonableness’ should be ‘based on reasonable and objective criteria and which are proportional to the purpose for which they are adopted’.53 Unreasonableness has also been coloured as vague or ambiguous.54
35 Ibid [34]. 36 Victorian Government Solicitor’s Office (n 20); General Comment No 16 (n 26) 8. 37 General Comment No 16 (n 26) [10]. 38 Ibid [8]. 39 Digital Rights Ireland Ltd v Seitlinger and Others (Court of Justice of the European Union, C-293/12; C-594/12, ECLI:EU:C:2014:238, 8 April 2014) [26]-[27], [37]. 40 The Right to Privacy in the Digital Age, UN GAOR, UN Doc A/HRC/27/37 (30 June 2014) [20]. 41 Ibid [36]. 42 General Comment No 16 (n 26) [3]. 43 Kracke v Mental Health Review Board and Others (n 18) [162]-[195]. 44 Versey H, ‘Human Rights – The Privacy Balancing Act’ (Speech, Victoria University Law Week, 15 May 2007). 45 General Comment No 16 (n 26) [4]. 46 Rassemblement Jurassien and Unite Jurassiene v Switzerland [1979] Eur Court HR 7, 120. 47 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 73 ALD 609, [144]; Uzun v Germany (2010) IHRL 1838 Eur Court HR, [4]; Nowak, ‘UN Covenant on Civil and Political Rights: CCPR Commentary’ (NP Engel, 2nd ed, 2005) 382-3. See also Human Rights Committee, General Comment No 27: Article 12 (Freedom of Movement), 67th sess, UN Doc CCPR/C/21/Rev.1/Add.9 (2 November 1999) [11]-[16]. 48 HRA (n 5) s 58. 49 Victorian Government Solicitor’s Office (n 20). 50 Patrick’s Case (n 14). 51 Ibid [85]. This was supported in WBM v Chief Commissioner of Police (2012) 43 VR 446, 471-2 [114]. 52 Human Rights Committee, Views: Communication No 488/1992, 50th sess, UN Doc CCPR/C/50/D/488/1992 (31 March 1994) (‘Toonen v Australia’). 53 Ibid [64]. 54 Kracke v Mental Health Review Board and Others (n 18) [193].
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Reputation Unlawfully Attacked Reputation generally refers to opinions or beliefs held about someone.55 The section prohibits attacks that are unlawful (intentional) and based on untrue allegations.56 Importantly, there is no reasonableness test. Case law suggests the right to privacy needs to be distinguished from the right to reputation when making complaints.57 The listing of an innocent individual’s name on a public terrorist watch list is an example of an unlawful attack, tarnishing and disparaging a person’s reputation due to the negative associations attached to that status.58 Justifiable Limitations on the Right to Privacy The right to privacy and reputation is not an absolute right59 and is ‘necessarily relative’.60 Section 25 places internal limits on the right through the words ‘arbitrary or unlawful’,61 in addition to the general limitation clause under s 13, which permits limitations which are demonstrably justifiable in a free and democratic society.62 Queensland has enacted legislation which allows for reasonable interference with the right,63 and it is open to the Parliament to do so.64 If limitation provisions are proportionate, they are not legally inconsistent with Australia’s obligations under the ICCPR.65 In order to ascertain proportionality, the means chosen for interference must be the least restrictive reasonably available,66 and an inquiry into whether competing rights are effectively balanced must be performed.67 The power of police to request the name and address of road-users has been upheld as one example of a reasonable interference proportionate to the legitimate purpose of public safety.68 However, coercive and continued demand may become unreasonable and constitute an arbitrary interference.69 Similarly, disclosure of the location of an offender subject to an extended police supervision order is justified in the interest of law enforcement,70 and conducting an employment misconduct investigation has been held to constitute a legitimate exercise of power.71 The recent high-profile Victorian case of ‘Lawyer X’ demonstrates circumstances in which courts will not protect privacy due to significant conflicting rights, particularly the public interest in the rule of law, right to a fair trial and general system of criminal justice.72 Although courts appear sympathetic to prioritising public interest,73 it is necessary to balance rights on a case-by-case basis.74 The use of digital surveillance should be assessed carefully, to prevent a potential ‘big brother’ society.75 The High Court has observed that privacy is the primary justification for limitations on
55 Victorian Government Solicitor’s Office (n 20). 56 Explanatory Notes (n 10) 22. See also Defamation Act 2005 (Qld). 57 Complainant Z v Local Council [2006] VPrivComr 1. 58 Human Rights Committee, Views: Communication No 1472/2006, 94th sess, UN Doc CCPR/C/94/D/1472/2006 (22 October 2008) (‘Sayadi & Vinck v Belgium’). 59 AIT18 v Australian Information Commissioner (2018) 363 ALR 281, [85]; Jurecek v Director, Transport Safety Victoria [2016] VSC 285, [67]; Director of Public Prosecutions v Kaba and Another (2014) 44 VR 526, [148]-[149]. 60 General Comment No 16 (n 26) [7]. 61 McDonald v Legal Services Commissioner (No 2) [2017] VSC 89, [36]. 62 HRA (n 5) s 13. 63 See, eg, Telecommunications Interception Act 2009 (Qld); Police Powers and Responsibilities Act 2000 (Qld). 64 Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285, 299. See also AIT18 v Australian Information Commissioner (2018) 363 ALR 281, [85]. 65 Director of Public Prosecutions v Kaba and Another (2014) 44 VR 526, [156]. 66 Ibid [160]; Patrick’s Case (n 14) [352]. 67 AC (Guardianship) [2009] VCAT 1186; Frangos, Thaedra, ‘The Right to Privacy in the Victorian Charter of Human Rights and Responsibilities’ (2007) 4(4) Privacy Law Bulletin 51, 53. Cf AIT18 v Australian Information Commissioner (2018) 363 ALR 281, [89]. 68 Director of Public Prosecutions v Kaba and Another (n 65) [159]. 69 Ibid. 70 ARM v Secretary to the Department of Justice (2008) 29 VR 472, [36]. 71 Jurecek v Director, Transport Safety Victoria [2016] VSC 285, [71]. 72 AB and EF v CD [2017] VSC 350, [415]-[420]. See also De Simone v Bevnol Constructions and Developments Pty Ltd [2011] VSCA 54, [35]; Heery v Criminal Justice Commission; Re Pierre Mark le Grand [2000] QSC 63, [33]. 73 Kumar v Minister for Immigration and Citizenship (2009) 107 ALD 178, [127]; WK v The Queen [2011] VSCA 345. 74 Victoria Police v Marke (2008) 23 VR 223, [108]. See also Riddick v Thames Board Mills Ltd [1977] QB 881, 896 (Lord Denning). 75 Coco v Newnham and Others (1990) 97 ALR 419, 452.
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police search powers.76 Similarly, privacy has prevailed over freedom of expression in some circumstances.77 Conciliated Outcomes The HRA provides for conciliation as a method of resolving complaints informally and flexibly.78 Although the Human Rights Commission seeks resolution, a remedy is not as of right.79 Any agreeable and lawful outcome may be sought during conciliation, including: • A formal apology, including acceptance of responsibility;80 • An explanation for the interference; • Requirement to take reasonable steps to ensure conduct is not repeated;81 • Compensation for any consequential loss or injury to feelings, humiliation, reputation; • Education and privacy training within the public authority; • Creation of new, or updating existing, policies and procedures; • Cessation of continuing interference; • Formal recorded documentation of interference; • Psychological care or social services; • Reprimand of liable individuals; and • Law reform.82 A complainant might seek more specific redress dependent on the circumstances, including redemption of their home or tenancy,83 deletion or reparation of private data collected, or reinstatement of employment. Where a person’s reputation has suffered, removal of damaging content or public rectification of the truth may be sought. Many complainants may wish to receive a declaration that conduct amounted to an interference, however, conciliators are unable to make a ruling in this regard. In the event of unsuccessful conciliation, the Commissioner must prepare a report for the parties involved,84 and the individual’s right to seek remedy through legal proceedings against a public entity under s 58 is not affected.85 The complainant may seek to have the matter heard before a tribunal. Complainants should have the possibility of seeking criminal prosecution for serious interferences.86
76 George v Rockett (1990) 170 CLR 104; 93 ALR 483, 487. 77 Von Hannover v Germany (2004) 16 BHRC 545; ICCPR (n 8) art 19(3). 78 HRA (n 5) ss 79-80. 79 Explanatory Notes (n 10) 7. 80 United Nations, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res 60/147, UN Doc A/RES/60/147 (16 December 2005) annex (‘Basic Principles and Guidelines’). 81 Professor Rosalind Croucher, ‘The Australian Human Rights Commission and Conciliation – a 40+ year success story, but…’ (Speech, National Mediation Conference Canberra, 17 April 2019). 82 See, eg, Toonen v Australia (n 52). 83 See, eg, Patrick’s Case (n 14). 84 HRA (n 5) s 88. 85 Ibid ss 58-59, 87. 86 Basic Principles and Guidelines (n 80).
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Section 26: Right to Protection of Families and Children
Linden Peacock and Tulli Seton
‘26 Protection of families and children
(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.
(2) Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.
(3) Every person born in Queensland has the right to a name and to be registered, as having been born, under a law of the State as soon as practicable after being born.’
Section 26 of the Human Rights Act 2019 (Qld) (‘HRA’) recognises families as ‘the fundamental group unit of society’ and entitles families to protection by both society and the State.1 The protection of families in s 26(1) is modelled on art 23(1) of the International Covenant on Civil and Political Rights (‘ICCPR’),2 and is identical to s 17(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’).3 It is also substantially similar in scope to s 11(1) of the Human Rights Act 2004 (ACT) (‘ACT Act’),4 though the ACT Act uses different language. Section 26(2) provides every child with the right to the protection that is needed by that child or is in their best interest, without discrimination.5 Section 26(3) also grants every person born in Queensland the right to a name and registration of birth as soon as practicable after being born.6 The rights of children in ss 26(2) and 26(3) of the HRA are modelled on arts 24(1) and 24(2) of the ICCPR, and s 26(2) is substantially similar to s 17(2) of the Victorian Charter and s11(2) of the ACT Act. Neither the Victorian Charter nor the ACT Act contain an equivalent to s26(3), making this section the most progressive interpretation of the equivalent ICCPR article in Australia to date. Interpretation Protection of Families As with other human rights instruments, the HRA emphasises the importance of protecting the family unit.7 However, the term ‘families’ is not expressly defined within the HRA. Rather, the phrasing of s 26(1) is intentionally broad, so as to acknowledge the diverse forms and understandings of family that exist in Queensland.8 As Paula Ettelbrick states, families ‘do not fit into one neat little box, and, in fact, due to many social changes over the last 30 or more years are not as easily channelled into those boxes as they might have been in prior generations’.9 It is therefore important that this provision is not interpreted narrowly or
1 Human Rights Act 2019 (Qld) s 26 (‘HRA’). 2 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, vol. 999 UNTS 171, entered into force on 23 March 1976 (‘ICCPR’); Explanatory Notes, Human Rights Bill 2018 (Qld) 22 (‘Explanatory Notes’). 3 Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’). 4 Human Rights Act 2004 (ACT) (‘ACT Act’). 5 HRA (n 1) s 26(2). 6 Ibid s 26(3). 7 See ICCPR (n 2) art 23(1); Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) art 16(3); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 10(1); Convention on the Rights of the Child 1989, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Preamble para 5. 8 Queensland Government, Guide: Nature and scope of the protected human rights (2019) 34. 9 Paula Ettelbrick, ‘Domestic Partnership, Civil Unions or Marriage: One Size Does Not Fit All’ (2001) 64(3) Albany Law Review 905, 914.
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limited to a particular family structure. In line with a growing body of international and domestic jurisprudence, the courts are instead likely to consider the existence of family relationships as an issue of fact, determined on a case-by-case basis.10 In determining the existence of ‘family,’ courts may have regard to the nature and quality of the relationship in question, including any relevant ‘cultural, economic and emotional dependency factors’.11 This approach was taken by Bell J in Secretary to the Department of Human Services v Sanding,12 in which his Honour considered the relationship between a group of children and their grandmother.13 Although the grandmother did not have a legal right to care and control of the children, it was relevant to the proceedings that she was their de facto carer, someone with whom they shared ‘a close and caring bond’, and formed part of their extended Indigenous family.14 A subjective approach will likely expand legal interpretations of ‘family’ in Queensland to encompass contemporary family relationships. In addition to the relationships that are well- recognised in family law, the definition of family may include blended families, de facto relationships, or situations in which children live with extended relations. Kinship ties should also be included within the meaning of “family,” in recognition of cultural traditions15 and the rights established in s 28 of the HRA.16 The right in s 26(1) entitles families to protection by society and the State, placing a negative duty on these institutions.17 The operation of s 26(1) is supported by the right to privacy under s 25 of the HRA, which prohibits unlawful or arbitrary interference with a person’s family.18 However, s 26(1) extends further than non-interference and is intended to guarantee ‘institutional protection of the family’.19 Though it is not specified what this will entail in practice, the United Nations Human Rights Committee has interpreted the equivalent ICCPR provisions as requiring countries to adopt ‘legislative, administrative or other measures’ in order to safeguard the family unit.20 The statutory requirement to consider human rights in public decision- making and legislative processes is one example of this.21 Providing government funding or otherwise supporting family-focused initiatives may be another. Moreover, the wording of the provision and the phrase ‘institutional protection’ do not suggest a positive requirement to take interventionary measures in general. There are no internal limits or qualifications in s 26(1), but limitations can be placed where it ‘can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.’22 Section 26(1) would not prevent, for example, the Department of Child Safety from removing children experiencing harm or neglect. However, the legislative provisions conferring this power on the Department, and the decision being made, would need to be considered in light of the rights in s 26.23 This right may also be relevant where a parent is to be sentenced. The equivalent ACT Act provision has directed courts to consider the effect that a sentence would have on the offender’s family members or dependents.24 The Court of Appeal of England and Wales interpreting art 8 of the European Convention on Human Rights (‘ECHR’) -
10 Fareda Banda and John Eekelaar, ‘International Conceptions of the Family,’ (2017) 66(4) International and Comparative Law Quarterly 833, 843. 11 United Nations High Commission for Refugees, ‘Summary Conclusions: Family Unity, Expert roundtable organized by UNHCR and the Graduate Institute of International Studies, Geneva, Switzerland, 8–9 November 2001’ in Feller et al. (eds) Refugee and Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, 2003) 604, 606. 12 (2011) 36 VR 221. 13 Ibid 27 [251]. 14 Ibid. 15 See Donnell & Dovey [2010] FamCAFC 15. 16 HRA (n 1) s 28(2)(c). 17 HRA s 26(1); Kroon and Others v the Netherlands (European Court of Human Rights, Application no. 18535/91, 27 October 1994), [31]. 18 HRA (n 1) s 25(a). 19 Explanatory Notes (n 2) 22. 20 Human Rights Committee, General Comment No. 19: Article 23 (The Family) Protection of the Family, the Right to Marriage and Equality of the Spouses, 39th sess, UN Doc HRI/Gen/1/Rev.8 (27 July 1990). 21 See HRA (n 1) pt 3 div 1, div 4. 22 HRA (n 1) s 13. 23 Alistair Evans and Kylie Pound, Annotated Victorian Charter of Rights (Thomson Reuters, 2018) 164-5. 24 ACT Act (n 4) s 11(1); Hugg v Driessen (2012) 261 FLR 324; Aldridge v R [2011] ACTCA 20.
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the right to respect for private and family life - extended this consideration to allowing infants to stay with their incarcerated mothers to protect this important relationship.25 The European Court of Human Rights has interpreted art 8 of the ECHR to extend to both the right of a couple to conceive a child using medically assisted procreation26 and to receive a pre-implantation diagnosis to determine if the embryo carried a genetic disorder.27 In Castles v Secretary to the Department of Justice,28 Emerton J held that the equivalent Victorian Charter section did not extend to the right to found a family,29 largely based on an express exclusion of same in the Charter’s Explanatory Memorandum.30 This express exclusion is not in the HRA’s Explanatory Notes, so a Queensland court may find that s 26(1) extends to rights to found a family. However, it should be noted that arts 23(2)-(4) of the ICCPR, which contain rights to marry and found a family, are not included in the HRA which casts doubt on Parliament’s intention to include such rights. Rights of Children in Section 26(2) Section 26(2) provides that ‘every child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child’.31 ‘Child’ is not defined within the HRA but is widely understood to be a person under the age of 18 years.32 Section 26(2) of the HRA recognises that special protection status should be afforded to children by their family, society and the State because of their ‘particular vulnerability’.33 Indeed, ‘children differ from adults in their physical and psychological development, and their emotional and educational needs’.34 This section recognises that children are entitled to the same rights as adults under the HRA, plus additional protections according to their best interests and by virtue of being a child. The only rights that a child would not enjoy would be those with an eligibility criteria, such as the right to vote.35 While this provision is of a broad nature, it is complemented by s 33 of the HRA, which sets out the special rights of children in the criminal process.36 Section 26(2) is intended to create a duty to enact ‘positive measures for protection of children by the society and the State’.37 This will likely entail promoting the survival, development and wellbeing of children to the maximum extent possible.38 The Explanatory Notes also reference the United Nations Convention on the Rights of the Child (‘CRC’)’s underlying principle: ‘“the best interests of the child” shall be a primary consideration in all actions concerning children.’39 The HRA does not define ‘best interests’ or provide guidance as to any relevant determining factors. As the phrase ‘best interests’ lacks certainty, it should be considered flexibly and adaptably, with regard to the specific circumstances of each case.40 While this is not without difficulty,41 a holistic approach that gives weight to the role of parents and families may yield the best outcomes for children.42 Indeed, at international law, a child’s best interests will highly depend on the
25 P v Secretary of State for Home Department [2001] EWCA Civ 1151. 26 S.H. v Austria (European Court of Human Rights, Application no. 57813/00, 1 April 2010); Knecht v Romania (European Court of Human Rights, Application no. 10048/10, 2 December 2012). 27 Costa and Pavan v Italy (European Court of Human Rights, Application no. 54270/10, 28 August 2012). 28 [2010] VSC 310. 29 Victorian Charter (n 3) s 17(1). 30 Explanatory Memorandum, Charter of Human Rights and Responsibilities Act 2006 (Vic) 14. 31 HRA (n 1) s 26(2). 32 See United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, (entered into force 2 September 1990) art 1 (‘CRC’); Child Protection Act 1999 (Qld) s 8. 33 Explanatory Notes (n 2) 22. 34 UN Committee on the Rights of the Child, General Comment No 10; Children’s Rights in Juvenile Justice, 44th sess UN Doc CRC/C/GC/10 (25 April 2007) [10]. 35 HRA (n 1) s 23(3). 36 Ibid s 33. 37 Explanatory Notes, 22. 38 Application for Bail by H L (No 2) [2017] VSC 1, [123]. 39 Explanatory Notes (n 2) 22. 40 Committee on the Rights of the Child, General Comment No 14: On the right of the child to have his or her best interests taken as the primary consideration, 62 nd sess, UN Doc CRC/C/GC/14 (29 May 2013) [32]. 41 Jonathan Crowe and Lisa Toohey, ‘From Good Intentions to Ethical Outcomes: The Paramountcy of Children's Interests in the Family Law Act’ (2009) 33(2) Melbourne University Law Review 391, 411. 42 Tamara Walsh, ‘Balancing Rights in Child Protection Law’ (2017) 31 Australian Journal of Family Law 47, 72.
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decision being made and the particular circumstances of the child. The CRC contains relevant factors for consideration,43 which were utilised by Garde J in Certain Children to interpret s 17(2) of the Victorian Charter.44 For example, it is within the child’s best interests to be treated with dignity and worth,45 and have their voices heard in matters that concern them.46 Furthermore, in Australia, the concept of a child’s ‘best interests’ has been explored extensively in the area of family law. The Family Law Act 1975 lists factors such as the benefit of a child having a meaningful relationship with their parents and the need to protect the child from physical and psychological harm as primary considerations in determining ‘best interests’.47 The ‘best interests of the child’ principle is also relevant to matters concerning the sentencing of parents. In the South African case of M v The State,48 the Court held that ‘in all matters concerning children, the children’s interests shall be paramount’, 49 and suspended the sentence of a parent as it was ‘clearly in the interests of the children that they continue to receive primary care from their mother’.50 The Australian position has traditionally been to reduce a sentence only where ‘exceptional’ circumstances exist.51 However, with the inclusion of s 26(2) and the Explanatory Notes’ direct reference to the CRC, it is open to Queensland courts to, where argued, make decisions on the basis of the best interests of the child principle. International jurisprudence interpreting the CRC has moved towards a ‘participatory’ model, which includes the right of children to express their opinions and contribute in decision-making processes that affect them.52 In Mabon v Mabon,53 the court held that in cases regarding residence arrangements, articulate teenagers have the right to present their wishes because decisions are being made regarding their future.54 Section 26(2) is drafted as the ‘protectionist’ model, with a focus on the special vulnerability of children. The scope of this right is yet to be determined by Queensland courts, but it is conceivable that meeting the needs of children might include a requirement to be heard and supported.55 In certain situations, the rights in ss 26(1) and 26(2) will be engaged at the same time, such as when children are removed from a family unit and placed in foster care or detention.56 When this occurs, harmonisation between the two rights will not always be possible, and authorities ‘will have to analyse and weigh the rights of all of those concerned’.57 In Australia, the child’s best interests are considered ‘paramount’,58 which has been taken to mean ‘over-riding’.59 As such, they will always be given precedence. This was confirmed in ZD v Secretary to the Department of Health and Human Services,60 wherein the court stated that the right to protection of family could be justifiably limited to give priority to the best interests of the child.61 Further, whilst due regard must be given to the protection of the family unit in s 26(1), a child may also need to be separated, where it is in their best interest, due to neglect or mistreatment.62 Discussing the equivalent provision in the ACT Act, the Supreme Court of the Australian Capital Territory has stated that an error of law
43 CRC (n 31) art 3(1). 44 Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (2016) 51 VR 473, [146]. 45 CRC (n 31) art 40(1). 46 Ibid art 12. 47 Family Law Act 1975 (Cth) s 60CC(2). 48 [2007] ZACC 18. 49 Ibid [12]. 50 Ibid [67]. 51 Tamara Walsh and Heather Douglas, ‘Sentencing Parents: The Consideration of Dependent Children’ (2016) 37 Adelaide Law Review 135-6; Markovic v the Queen [2010] VSCA 105. 52 Human Rights and Discrimination Commissioner, Collation of Factsheets on each right under the ACT Human Rights Act 2004’ ACT Human Rights Commission (February 2015) 14. 53 [2005] EWCA Civ 634. 54 Ibid. 55 Human Rights and Discrimination Commissioner (n 51) 14. 56 See Secretary to the Department of Human Services v Sanding (n 12) 257 [157]. 57 Committee on the Rights of the Child, General Comment No 14: On the right of the child to have his or her best interests taken as the primary consideration, 62nd sess, UN Doc CRC/C/GC/14 (29 May 2013) [39]. 58 See Family Law Act 1975 (n 46) s 60CA. 59 Anthony Dickey, ‘The Best Interests Principle: Truth, Ideology or Mantra?’ (2011) 85 Australian Law Journal 159, 161. 60 [2017] VSC 806. 61 Ibid [110]. 62 A v Chief Executive, Department of Disability, Housing and Community Services (2006) 160 ACTR 7, [48].
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may occur where due consideration and a balancing of these rights does not take place in a decision to remove a child.63 Pursuant to s 106,64 the HRA does not affect any existing laws regarding terminations of pregnancy or the killing of an unborn child, so an argument could not be made that legal abortions in Queensland are a breach of the right in s 26(2). Rights of Children under Section 26(3) Section 26(3) provides for the right to a name and to birth registration. It serves as an additional protective measure for children; a child who is not registered at birth is at risk of being denied an official identity, name and nationality, which can lead to marginalisation and even abuse.65 In Queensland, a birth certificate may also be needed to apply for access to childcare, healthcare and schooling, thereby affecting other HRA rights.66 According to the Office of the High Commissioner for Human Rights, the purpose of this right is also to reduce the threat of child abduction, trafficking or other activities which contravene a child’s rights under the ICCPR.67 Further, adherence ensures that no child is born stateless.68 Section 26(3) ‘is not intended to place any positive obligations on the Registrar of Births, Deaths and Marriages to take active steps to register a birth or name a child if a parent does not lodge a registration’ beyond any obligations already existing in legislation.69 This right is directed at the child’s parents or guardians, and the State’s only obligation is to create an appropriate legal framework and establish registration services.70 There are two topical issues which, if litigated, may see Queensland courts making a finding that existing registration processes are incompatible with this right. First, the United Nations Committee on the Rights of the Child has raised concerns over difficulties faced by First Nations persons with the current birth registration process, due to factors such as poor literacy levels, lack of understanding of the requirements of registration and the costs of obtaining a birth certificate.71 This also raises concerns of a breach of the right of equality and recognition before the law.72 Secondly, only two parents can be registered on a birth certificate and they must be the child’s biological mother and either the biological father or a non-birth mother who was in a de facto relationship with the biological mother at the time of a fertilisation procedure.73 This does not effectively protect the rights of children who are born into a different family structure, usually as the result of adoption, surrogacy, or by fertilisation procedure.74 It has been argued that ‘[i]n order for a person’s right to registration to be fully realised, birth certificates should accurately reflect the family with whom that person identifies himself or herself’.75 An argument could be made on either of these grounds that the current registration process is incompatible with the rights of children in the HRA, although it would require a progressive and potentially radical decision by a Queensland court. Conciliated Outcomes There is no stand-alone legal remedy for contravention of the HRA and litigating on a breach of the HRA requires tying this with some other cause of action.76 However, the HRA contains a unique provision allowing
63 Ibid. 64 HRA (n 1) s 106. 65 UNICEF Innocenti Research Centre, ‘Birth Registration: Right from the Start’ Innocenti Digest No. 9 (UNICEF, 2002), 3. 66 See e.g. HRA (n 1) ss 36, 37. 67 Office of the United Nations High Commissioner for Human Rights, ‘CCPR General Comment No. 17: Article 24 (Rights of the child)’, adopted at the 35th session of the Human Rights Committee on 7 April 1989
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complaints to be made to the Queensland Human Rights Commission (‘QHRC’),77 who may implement a conciliation process. Conciliation is an opportunity for all parties involved to discuss and resolve the grievance privately and informally.78 It is often a faster and more cost-effective means of accessing justice than undertaking court proceedings and can result in a wide variety of outcomes. Section 26 will likely be engaged in decisions or acts that deal with family care arrangements, involve the removal of children from their family, relate to the treatment of children in the criminal process, or regulate family contact.79 Interference with families and children can have a devastating effect, so it is important that affected parties have access to a suitable avenue of recourse. Conciliated outcomes that a person may seek include: • Listening to the complaint: this gives the complainant the opportunity to speak and to be heard, which can be empowering and remedial.80 • An agreement by the Department of Child Safety to return a child to their family, where there was not adequate cause for removal and the rights in ss 26(1) and 26(2) were breached. • Providing compensation:81 compensation may be suitable where a complainant has experienced significant pain and suffering. It may also be appropriate if a party involved requires access to certain resources and support services (such as psychological care) as a result of the decision. However, the case of Brough v Australia82 exemplifies that there may be a reticence for government departments to provide compensation, even where there is a finding that a child’s human rights were unjustifiably breached.83 • A private apology acknowledging the wrongdoing and subsequent harm caused: this may also involve a statement of regret, whereby the public entity expresses remorse for its actions. When a decision-maker issues a sincere apology, it can lead to a sense of respect and empowerment for the complainant.84 It also encourages the decision-maker to consider why their actions were detrimental and how this can be avoided in the future.85 • A public apology or statement of regret: this can be symbolic where it is made by a government department or statutory body, as it allows for an acknowledgement of the hurt and distress caused or the improper action taken against the complainant.86 A particularly symbolic example of this would be the apology by Prime Minister Kevin Rudd on 13 February 2008, for the infringement of the rights of families and children during the ‘Stolen Generations’ policy era. • The reversal of the decision involving the family and/or child in question: it has been observed that ‘where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end’.87 While this is not always immediately possible given the complexity of cases that concern a child’s ‘best interests’, it is undoubtedly an important goal for families. • A commitment by the decision-maker to improve its policies and decision-making tools in order to better account for human rights: this may involve developing best practice principles, outlining standards of conduct, and imposing minimum standards for the proper treatment of families and
77 Ibid s 63. 78 Ibid s 80. 79 Queensland Human Rights Commission, ‘Right to protection of families and children’ (Fact sheet, July 2019) < https://www.qhrc.qld.gov.au/your-rights/human-rights-law/right-to-protection-of-families-and-children> 80 Queensland Human Rights Commission, ‘Fact Sheet: All about conciliation’, Queensland Human Rights Commission (December 2019), 3 < https://www.qhrc.qld.gov.au/__data/assets/pdf_file/ 0006/19815/QHRC_factsheet_Complaints_AllAboutConciliation.pdf>. 81 Queensland Human Rights Commission, ‘Fact Sheet: All about conciliation’, Queensland Human Rights Commission (December 2019), 4 < https://www.qhrc.qld.gov.au/__data/assets/pdf_file/ 0006/19815/QHRC_factsheet_Complaints_AllAboutConciliation.pdf>. 82 Human Rights Committee, Communication No 1184/2003, 17 March 2006. 83 Ibid. 84 Deborah Levi, ‘The Role of Apology in Mediation’ (2007) 72(5) New York University Law Review 1165, 1170. 85 Ibid. 86 Queensland Human Rights Commission (n 81) 4. 87 R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 [53].
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children. A complainant may also seek that the party makes this information publicly accessible for increased accountability. An example of this would be the remedy sought in Certain Children,88 where the plaintiffs sought to be moved to youth detention facilities and to prevent children from being incarcerated in adult facilities. • A commitment by the decision-maker to educate and train its staff so that they are fully aware of their human rights obligations, equipped to deal with complex human rights concerns, and are able to appropriately evaluate ‘best interests’: this is essential where decision makers (e.g. agents of the Department of Child Safety) have the power to limit the rights in s 26 (e.g. by removing a child from their family) and must take these rights into account during decision-making. • The implementation or review of anti-discrimination policies so that the right to protection of families and children is not breached in the future: if the right is infringed upon, a decision-maker can be held liable under the policy. • The QHRC can review the effect of legislation on human rights and provide the Attorney-General with a written report.89 This may assist in creating legal change within Queensland, such as with the birth registration process.
88 [2017] VSC 251. 89 HRA (n 1) s 92.
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Section 27: Cultural Rights – Generally
Matilda McLennan Bird
‘27 Cultural Rights - Generally
All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy their culture, to declare and practise their religion and to use their language.’
Section 27 of the Human Rights Act 2019 (Qld) (‘HRA’),1 is based on art 27 of the International Covenant on Civil and Political Rights (‘ICCPR’),2 and is nearly identical to the equivalent right under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’).3 Section 27 of the HRA is distinct from the specific cultural rights for Aboriginal and Torres Strait Islanders under s 28, and is separate to, but complemented by, the freedom of thought, conscience, religion and belief, and freedom of expression in ss 20 and 21 respectively.4 This paper will analyse s 27 and consider how Queensland decision-makers should interpret and apply it with reference to approaches in Victoria,5 and international jurisdictions, and provide potential conciliated outcomes for individuals who might make a s 27 complaint. Interpretation Cultural Background Section 27 applies to all people in Queensland with a particular cultural, religious, racial or linguistic background. Unlike in other jurisdictions,6 protection is not restricted to Indigenous peoples, minority groups, Australian citizens, or residents of Queensland. In Hoskin v Greater Bendigo City Council, a permit was sought to build a mosque with attached facilities in Bendigo, Victoria, which 435 people objected to.7 Applying s 19 of the Victorian Charter, the permit seekers submitted ‘that the community of “all Victorians” include[d] those who follow Islam’,8 with which the Court agreed.9 Section 31(1) of the South African Constitution also has a cultural right for any person belonging to a community, like the HRA,10 reflecting the history of South Africa.11 ‘With a background’ Courts should establish that the claimant has the relevant background; in many cases this will also be uncontroversial. In Victoria, some established cultural, religious and linguistic groups with shared backgrounds include Assyrian Christians,12 Muslims,13 and Greeks.14
1 Human Rights Act 2019 (Qld), s 27 (‘HRA’). 2 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, vol. 999 UNTS 171, entered into force on 23 March 1976 (‘ICCPR’); Queensland Human Rights Commission, Cultural rights: Section 27 of the Human Rights Act 2019 (July 2019) Queensland Human Rights Commission
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An international example is Lovelace v Canada,15 where the UN Human Rights Committee (‘HRC’) considered art 27 of the ICCPR, which protects cultural rights of minorities. The HRC found that someone would ‘belong’ to the Maliseet Indian minority group if they were ‘born and brought up on a reserve, [had] kept ties with their community and wish[ed] to maintain these ties’.16 The HRC’s General Comment No. 23 also importantly emphasised that: ‘the persons designed to be protected [by art 27] are those who belong to a group and who share in common a culture, religion and/or language’.17 Parts of culture and limitation by public authorities Once it has been established that the cultural background exists, and the claimant has that background, courts will need to determine:18
• whether the activity or thing is a part of the culture; and • whether the claimant is being denied the right to enjoy that culture in community with others of the same background. These two questions are intertwined and heavily dependent on the facts. ‘Denied’ can be given a plain, ordinary meaning and understood as an unreasonable limit on culture. However, in international case law, not every limit on culture amounts to a ‘denial’;19 measures which have ‘a certain limited impact’ on culture may not be in breach of s 27, as explained by the Human Rights Committee:20 ‘...a restriction upon [a] right... must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole’.21 Another aspect of this consideration is that the culture must be denied ‘in community with other persons of that background’. In relation to the ICCPR equivalent, General Comment No. 23 states that because the right depends on the ability of the group to maintain its culture, authorities might have positive obligations ‘to protect the identity of a minority and the rights of its members’ so they can exercise their rights as a group.22
In the Victorian case of Rutherford,23 it was acknowledged that mosques (and arguably by extension, other places of worship) are an indispensable part of faith and that limiting them would infringe upon the ability of a group to enjoy their culture.24 Further, the Tribunal held that the presence of a mosque and its Muslim adherents near an Assyrian Christian church would not ‘provoke or intimidate or limit the religious freedoms of the [Assyrian Christian] Church (or the practice of their particular denominational culture and beliefs) in the sense raised by the Charter’.25
In Rekatsinas,26 the issue was whether provisions of the Transport Accident Act 1986 (Vic) would provide compensation to pay for a certain monumental and culturally significant gravestone for the Greek victim, Mr
Rekatsinas.27 The Tribunal acknowledged that both Greek and Italian populations had an ‘intense and
15 Lovelace v Canada, UN Doc CCPR/C/13/D/24/1977. 16 Ibid [14]. 17 Human Rights Committee, General Comment No. 23: Article 27 (Rights of Minorities), 50th sess, UN Doc CCPR/C/21/Rev.1/Add.9 (8 April 1994), [5.1] (emphasis added) (‘General Comment No. 23’). 18 See Queensland Act (n 1) s 27. 19 Lovelace v Canada (n 15) [15]; Jouni Länsman et al. v Finland, UN Doc CCPR/C/52/D/511/1992, [9.4] (‘Jouni Länsman (No 1)’). 20 Jouni Länsman (No 1) (n 19) [9.4] 21 Kitok v Sweden, UN Doc CCPR/C/33/D/197/1985, [9.8] (‘Kitok v Sweden’); Lovelace v Canada (n 15). 22 General Comment No. 23 (n 17) [6.2]. 23 Rutherford (n 12). 24 Rutherford (n 12) [30]. See also Hoskin (n 7). 25 Rutherford (n 12) [30] (emphasis added). 26 Rekatsinas (n 14). 27 Ibid.
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expansive tradition’ of honouring the deceased, but would not allow compensation under the Act for the monument.28 In decisions of the HRC applying art 27 of the ICCPR, the question has often been whether the cultural phenomenon is ‘essential’ to the culture, religion or language. For example, reindeer husbandry was found to be an essential element of the culture of the Sami ethnic group in Finland,29 as was the use and control of fisheries by Maori peoples in New Zealand.30 With regard to religion, the HRC found that although smoking cannabis is an essential element of Rastafarian religion, ‘a general prohibition of possession and use of cannabis’ was consistent with the author’s right under art 27.31 Language has also been held to be an essential component of culture; a newspaper published in the Tajik minority language in Uzbekistan was considered an essential ‘means of airing issues of significance and importance to the Tajik minority community’.32 It is worth noting that cultural activities may still be protected under art 27 when they generate income. In the Finnish reindeer cases, the HRC has confirmed that economic activities can still be essential cultural elements and therefore authorities may not have as much regulatory power.33 Many cases decided by the HRC have involved land as an important aspect of culture, particularly those involving Indigenous communities, as in the aforementioned Finnish reindeer cases.34 Similarly, in Poma Poma v Peru, the HRC found that water diversions from certain areas would significantly impact the culture of the Aymara ethnic minority group which raised and farmed llamas as a part of their cultural tradition.35 Whereas in Diergaardt et al. v Namibia, the Rehoboth community’s claim failed as they could not demonstrate a distinct link between their culture and certain pastoral lands.36 Queensland decision-makers could consider adopting the ‘essential’ test used by the HRC to discern critical violations of the cultural right where there may be such ‘borderline’ cases. Conciliated Outcomes Due to the nature of the s 27 cultural right as something significant and particular to different communities, conciliation outcomes are ideal as parties can come to specific and individualised agreements to balance their rights. Where loss has occurred, whether economic or intangible, financial compensation could be an appropriate outcome. This could include: • Compensation for economic loss;
• Compensation for loss of past and or future earnings; or
• Compensation for non-economic loss, for example for pain, suffering, loss of enjoyment of life, intimidation or embarrassment.37 If the alleged breach of cultural rights is inevitable, there may be conciliation solutions which seek to minimise damage caused in the current matter, or prevent similar breaches from occurring in future, such as:
28 Ibid [45]. 29 Äärelä and Näkkäläjärvi v Finland, UN Doc CCPR/C/73/D/779/1997 (‘Äärelä’). See also Kitok v Sweden, UN Doc CCPR/C/33/D/197/1985; Jouni Länsman (No 1) (n 19); Jouni Länsman et al. v Finland, UN Doc CCPR/C/58/D/671/1995 (‘Jouni Länsman (No 2)’). 30 Mahuika v New Zealand, UN Doc CCPR/C/70/D/547/1993. 31 Prince v South Africa, UN Doc CCPR/C/91/D/1474/2006. 32 Mavlonov v Uzbekistan, UN Doc CCPR/C/95/D/1334/2004, [8.7]. 33 Kitok v Sweden (n 21); Jouni Länsman (No 2) (n 29). 34 Kitok v Sweden (n 21); Jouni Länsman (No 1) (n 19); Jouni Länsman (No 2) (n 29); Äärelä (n 29); Paadar v Finland, UN Doc CCPR/C/110/D/2102/2011. 35 Poma Poma v Peru, UN Doc CCPR/C/95/D/1457/2006. 36 Diergaardt et al. v Namibia, UN Doc CCPR/C/69/D/760/1997. 37 Green v State of Queensland [2017] QCAT 008.
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• Restricting the nature, timing and or frequency of the limiting conduct;38
• Requiring consultation with relevant cultural groups before further action;
• Education of relevant parties to prevent future breaches;
• Changes to policies of specific public authorities for dealing with cultural groups; or
• Changes to public policy. Lastly, potential conciliation outcomes for s 27 disputes might be something more symbolic or explanatory, which seek to acknowledge past events: • A private apology;39
• A public apology (for example in print or online media40);
• A monument or similar acknowledgement to recognise the cultural activity (for example where the activity used land);
• An explanation; or
• A donation to a related cause or charity.41
38 Jouni Länsman (No 1) (n 19). 39 Bell v Islam [2016] QCAT 520. 40 Ibid. 41 Ibid.
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Section 28: Cultural Rights – Aboriginal Peoples and Torres Strait Islanders
Emma Beckinsale and Christabelle Stafford-Smith
‘28 Cultural Rights – Aboriginal Peoples and Torres Strait Islanders
(1) Aboriginal peoples and Torres Strait Islander peoples hold distinct cultural rights.
(2) Aboriginal peoples and Torres Strait Islander peoples must not be denied the right, with other members of their community—
(a) to enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings; and
(b) to enjoy, maintain, control, protect, develop and use their language, including traditional cultural expressions; and
(c) to enjoy, maintain, control, protect and develop their kinship ties; and
(d) to maintain and strengthen their distinctive spiritual, material and economic relationship with the land, territories, waters, coastal seas and other resources with which they have a connection under Aboriginal tradition or Island custom; and
(e) to conserve and protect the environment and productive capacity of their land, territories, waters, coastal seas and other resources.
(3) Aboriginal peoples and Torres Strait Islander peoples have the right not to be subjected to forced assimilation or destruction of their culture.’
Section 28 of the Queensland Human Rights Act 2019 (‘HRA’) aims to protect the cultural rights of Aboriginal and Torres Strait Islander peoples. The provision gives effect to the preamble of the HRA, which notes the ‘special importance’ of human rights to Indigenous people.1 Section 28 is modelled on articles from the International Covenant on Civil and Political Rights (‘ICCPR’)2 and the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’).3 The outline below considers how Queensland decision-makers are likely to interpret s 28 and the potential outcomes that complainants may achieve under the HRA’s conciliation process. Public Entities The HRA makes it unlawful for a public entity to act in a manner that is incompatible with human rights or to make decisions that do not take proper consideration of relevant human rights.4 Examples of public entities that are most likely to impact Aboriginal cultural rights include police, public schools, public health services,
1 Human Rights Act 2019 (Qld) Preamble s 6 (‘HRA’). 2 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into Force 23 March 1976) (‘ICCPR’). 3 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61.295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007) (‘UNDRIP’). 4 HRA (n 1) s 58.
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correctional facilities, courts or tribunals (acting in an administrative capacity),5 public housing and government departments (particularly those relating to child protection and natural resources).6 Nature of Indigenous Cultural Rights Comparison with ACT and Victoria In contrast to human rights legislation in the ACT and Victoria, the HRA protects general cultural rights and Aboriginal cultural rights in separate provisions.7 The HRA thereby avoids treating Indigenous peoples as homogenous and does not frame the rights of Indigenous peoples through a minority claims model.8 Further, ss 28(2)(e) and 28(3) are unique to the HRA, broadening the Queensland legislation compared to its interstate counterparts. Given that Queensland is the only Australian jurisdiction to use two separate provisions for the protection of general cultural rights and Indigenous cultural rights, it is unclear how these rights may interact with each other and how the scope of each provision may differ. However, based on its plain ordinary meaning, s 28 appears to be more specific and more extensive than the general cultural rights under s 27, although s 27 has the potential to cover the same matters as s 28. In matters affecting Indigenous peoples, it would be more appropriate to apply the specific s 28 rights. This is consistent with international jurisprudence on human rights law,9 as well as general principles of statutory interpretation stipulating that specific provisions should prevail over general provisions (i.e. generalia specialibus non derogant and generaliabus specialia derogant).10 However, both ss 27 and 28 could apply in certain circumstances, for example, to protect the cultural rights of a person who is mixed race. Negative versus Positive Rights The negative wording of s 28 (‘must not be denied the right’) could be read to suggest that only substantial infringements with cultural rights will be incompatible with the provision.11 However, when commenting on the international human rights law on which s 28 is modelled, the United Nations Human Rights Committee (‘HRC’) has stated that, despite this language, cultural rights constitute positive rather than negative rights.12 In practice, however, the HRC has found that conduct with a limited impact on cultural rights did not necessarily amount to a breach.13 Similarly, a restriction on cultural rights that has both reasonable and objective justification will be compatible with the right.14 Nonetheless, despite the HRC's decisions, the language of s 28 supports an interpretation of the provision as conferring positive rights. Indeed, the HRA goes further than the ACT and Victorian legislation, including a
5 Ibid s 9. 6 See e.g. Victorian Equal Opportunity & Human Rights Commission, ‘Aboriginal Cultural Rights’, Aboriginal Cultural Rights in Victoria (Brochure)
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right to ‘enjoy’ as well as ‘maintain’, ‘control’, ‘protect’ and ‘develop’ certain cultural rights.15 International jurisprudence indicates that the right to ‘strengthen’ and ‘develop’, as opposed to merely ‘maintain’, cultural rights places positive duties on the State.16 Therefore, the breadth of s 28 supports an interpretation that places both negative and positive duties on public entities. Individual versus Collective Rights The Preamble to the HRA refers to the importance of the right to self-determination to Indigenous peoples.17 Section 28(2) provides that Aboriginal and Torres Strait Islander peoples hold cultural rights ‘with other members of their community’. However, the right of self-determination is notably absent from s 28 and s 11(2) provides that ‘only individuals have human rights’ under the HRA.18 Therefore, Aboriginal cultural rights under s 28 are unlikely to be interpreted as conferring collective rights.19 Rather, s 28 may be interpreted as conferring individual rights with ‘a collective dimension’20 insofar as the provision ‘protects the identity of the minority’.21 Interpretation of Indigenous Cultural Rights Section 28 creates six discrete rights22 that are considered individually below. Identity and Cultural Heritage Section 28(2)(a) provides that Aboriginal and Torres Strait Islander peoples have a right to ‘enjoy, maintain, control, protect and develop their identity and cultural heritage, including their traditional knowledge, distinctive spiritual practices, observances, beliefs and teachings’. This is based on art 27 of the ICCPR and art 31 of UNDRIP.23 The HRA does not define ‘identity’ or ‘cultural heritage’.24 Further, unlike the Victorian Charter, the HRA does not contain a definition of ‘Aboriginal’ or ‘Torres Strait Islander’. There are several definitions of Indigenous identity and cultural heritage that Queensland decision-makers may apply. Firstly, courts may apply the common law definition that has previously been approved by the High Court of Australia.25 This test defines an Aboriginal person as someone who is descended from an Aboriginal person, identifies as Aboriginal, and is accepted by their Aboriginal community.26 However, this definition has recently fallen out of favour, with French J commenting that it ‘should not be seen as representing the contemporary content of the word “Aboriginal”’.27 Queensland decision-makers are therefore likely to apply a less onerous definition. For example, the test for accessing the Murri Court may be adopted, which requires self-identification, kinship, or appropriate connection to the community.28 Similarly, courts may consider that descent alone is sufficient, in accordance
15 HRA (n 1) s 28(2). 16 Claire Charters, ‘Chapter 14: Indigenous Peoples’ Rights to Lands, Territories, and Resources in the UNDRIP’ in Jessie Hohmann and Marc Weller (eds), The UN Declaration on the Rights of Indigenous Peoples: A Commentary (Oxford University Press, 22 March 2018) 412. 17 HRA (n 1) Preamble (6). 18 Ibid s 11(2). 19 See generally, Hartley (n 8) 16; Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005) 22, 51. 20 Stefania Errico, ‘Rights to Land and Territory, Natural Resources and Environment’ in Jessie Hohmann and Marc Weller (n 16) 152-53. 21 General Comment No 23 (n 12) [6.2]. 22 HRA (n 1) ss 28(2)(a)-(e) and 28(3). 23 Explanatory Notes, Human Rights Bill 2018 (Qld) 4, 23 (‘Explanatory Notes’). 24 Cf Victorian Charter (n 7) s 3 (definition of ‘Aboriginal’). 25 Commonwealth v Tasmania (1983) 158 CLR 1, 274 (Deane J); see also Mabo v Queensland (No 2) (1992) 175 CLR 1, 70 (Brennan J). More recently, see Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3. 26 Ibid. 27 Attorney General (Cth) v Queensland (1990) 25 FCR 125, 147-8; Eatock v Bolt (2011) 197 FCR 261, 302-3 [179]. 28 Queensland Courts, Murri Court Procedure Manual (Manual, 2017) 15
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with the definition adopted in several cases29 as well as the Royal Commission into Aboriginal Deaths in Custody.30 Culture has been defined in international law as ‘dynamic and evolving’.31 Cultural heritage encompasses practices, expressions, oral traditions, rituals, epistemologies, skills, objects and cultural spaces.32 The right under s 28(2)(a) will not only protect traditional cultural practices, but also those that have evolved over time in response to modern conditions and technologies,33 as well as economic activities.34 However, despite the broad definitions of both identity and cultural heritage, s 28 will not affect intellectual property rights. Section 28(2)(a) specifically omits the reference to intellectual property included in art 31 UNDRIP. Further, the equivalent ACT provision was drafted so as not to confer or create intellectual property rights, as this is a matter for Commonwealth regulation.35 Cemino v Cannan provides an example of the application of the equivalent right in Victoria.36 In this case, the Victorian Supreme Court held that courts must take Aboriginal cultural rights into account when considering an Aboriginal person’s request to be heard in the Koori Court.37 Similar obligations are therefore likely to apply to requests by Aboriginal people in Queensland to be heard in the Murri Court. Language Section 28(2)(b) is based on art 27 of the ICCPR and protects the right of Indigenous peoples ‘to enjoy, maintain, control, protect and develop and use their language, including traditional cultural expression’.38 According to the State Library of Queensland, there are at least 173 different Indigenous languages used by Aboriginal and Torres Strait Islander peoples in Queensland.39 Article 27 of the ICCPR includes a right to positive measures of protection.40 Therefore, public authorities acting in accordance with the HRA may need to take positive steps to protect and foster Indigenous language rights, or at the least, take steps to prevent encroachments on these rights. Section 28(2)(b) would therefore encompass a right to use Indigenous languages in community with others and not to have communications in Indigenous languages limited, prohibited or prevented.41 Considering the degradation of many Indigenous languages, this right may be interpreted as requiring public entities to take positive steps to protect and maintain Indigenous languages.42 For example, the right could be used to support Aboriginal peoples’ requests and claims for public entities to provide services adapted to cultural differences (such as interpreters)43 or certain educational or other materials in Indigenous languages.44
29 Attorney General (Cth) v Queensland (n 27), 147-8 (French CJ); Eatock v Bolt (n 27) 302-3. See also UNDRIP (n 3) art 33. 30 Royal Commission into Aboriginal Deaths in Custody (Final Report, April 1991) vol 1. 31 Committee on Economic, Social and Cultural Rights, General Comment No 21 on the Right of Everyone to Take Part in Cultural Life (Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights), UN ESCOR, 43rd sess, UN Doc E/C.12/GC/21 (21 December 2009) [11]. See also Länsman v Finland (Communication No 511/1992) at [9.2]. 32 UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage, 17 October 2003, 2368 UNTS 3, Preamble (6) and art 2(1). 33 Länsman v Finland (Communication No 511/1992) [9.2]. 34 Kitok v Sweden (Communication No 197/1985) [9.2]; Mahuika v New Zealand (Communication No 547/1993) [9.3]. 35 Revised Explanatory Statement, Human Rights Amendment Bill 2005 (ACT) 5. 36 (2018) 56 VR 480. 37 Ibid [141], [147]-[150], [154]. See also Charter of Human Rights and Responsibilities Act 2006 (Vic) s 6(2)(b), 32(1). 38 Explanatory Notes (n 23) 4, 23. 39 ‘Indigenous Languages Map of Queensland’, State Library of Queensland (Web Page, 2019)
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As language is strongly intertwined with cultural identity and heritage, this right significantly overlaps with the right in s 28(2)(a).45 Cemino v Cannan is therefore also illustrative of this right in practice.46 As discussed above, the claimant in Cemino v Cannan relied on cultural rights to support a request for a transfer to the Koori Court.47 Courts such as the Koori Court and the Murri Court aim to remove language and communication barriers for Aboriginal and Torres Strait Islander people involved in the criminal justice system.48 Therefore, s 28(2)(b) could also be used to support transfers to the Murri Court or requests for similar services that also provide language or communication assistance to Indigenous peoples. Kinship Section 28(2)(c) is based on art 27 of the ICCPR and protects the right of Indigenous peoples ‘to enjoy, maintain, control, protect and develop their kinship ties’.49 Family law is likely to inform the interpretation of this provision. Section 61F of the Family Law Act 1975 (Cth) requires that, when considering the kinship ties of Indigenous children, a court must have regard to the particular practices of the relevant Aboriginal or Torres Strait Islander culture to which the child belongs.50 Similarly, in relation to s 28(2)(c), courts are likely to adopt Indigenous definitions of kinship rather than Western definitions of family. The Aboriginal understanding of kinship is far broader than non-Aboriginal, Western conceptions and extends beyond the immediate family into the broader community.51 Section 28(2)(c) is likely to be most significant in relation to matters concerning child protection,52 guardianship,53 bail applications,54 and correctional facilities.55 There are several cases considering the equivalent Victorian kinship right that provide illustrative examples of how the right may operate in Queensland. Firstly, the Victorian Supreme Court has held that, in child protection matters, the Children, Youth and Families Act 2005 (Vic)56 engages the right to maintain kinship ties.57 Therefore, s 28(2)(c) could be used to support the rights of Aboriginal parents and families to maintain custody of children. Secondly, in the context of involuntary mental health treatment orders, the Victorian kinship right has been held to support the granting of a Community Treatment Order rather than an Inpatient Treatment Order.58 Further, the Victorian Supreme Court has observed that s 3A of the Bail Act 1977 (Vic), which requires a court to take into account Indigenous cultural issues, should be read in conjunction with Victoria's equivalent ‘kinship’ right.59 The Victorian Equal Opportunity and Human Rights Commission has released a report stating that the right to maintain kinship ties could be used to support the right of Aboriginal persons in custody (especially Aboriginal youths) to use technology to communicate with family, to use temporary leave programs to visit family, to increase or abolish time limits for contacting or visiting with family members, to provide
45 Tobias Stoll, ‘Chapter 11: Intellectual Property and Technologies’ in Jessie Hohmann and Marc Weller (n 16) 316. 46 (2018) 56 VR 480. 47 Ibid [141], [147]-[150], [154]. 48 Natalia Stroud, ‘The Koori Court Revisited: A Review of Cultural and Language Awareness in the Administration of Justice’ (2010) Monash University Law Research Series 12; Australian Institute of Criminology, Evaluation of the Queensland Murri Court: Final Report. (AIC Report 39, 2010) 8, 131, 134. 49 Explanatory Notes (n 23) 4, 23. 50 Donnell v Dovey (2010) 42 Fam LR 559 [321]-[323] citing Davis v Davis (2008) 38 Fam LR 671. 51 Donnell v Dovey (n 50) [281], [321]-[323]. See also Judicial College of Victoria (n 42) 6.13.3. 52 Secretary to the Department of Human Services v Sanding (2011) 36 VR 221; Tamara Walsh, ‘Balancing Rights in Child Protection Law’ (2017) 31 Australian Journal of Family Law 47, 59. Cf OP v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 1054. 53 Queensland Human Rights Commission, ‘Cultural Rights’, Human Rights Law (Fact Sheet, July 2019) 2
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accommodation for family members to stay overnight at the facility, and to attend funerals of their extended kinship circle.60 Therefore, based on the case law and commentary from Victoria, the kinship right is likely to have a broad application in Queensland. This is particularly so because the Victorian kinship right is narrower than its Queensland counterpart – the Victorian right constitutes a right to ‘maintain’ kinship ties,61 whereas the HRA provides that Indigenous peoples have a right to ‘enjoy, maintain, control, protect and develop’ kinship ties.62 Relationship with Land Section 28(2)(d) is derived from art 25 of the UNDRIP and protects the right of Indigenous peoples ‘to maintain and strengthen their distinctive spiritual, material and economic relationship with the land, territories, waters, coastal seas and other resources with which they have a connection under Aboriginal tradition or Island custom’.63 Foreign jurisdictions have found that art 25 of the UNDRIP and similar cultural rights have been breached when Indigenous peoples were forcibly evicted from land, prevented from accessing land, or had waterways or land altered without consultation.64 Section 28(2)(d) may be narrower in scope, as the HRA does not affect native title rights and interests.65 However, this right will likely be engaged where conduct by public entities impacts Indigenous peoples’ access to, use of, and commercialisation of land. The provision has been used in Victoria to support employment policies exclusively recruiting Indigenous people for positions working on and caring for country.66 The HRC has held that the right of Indigenous peoples to maintain their cultural heritage and relationship with the land will not be breached where the relevant Indigenous people were consulted and participated in the decision-making.67 Therefore, s 28(2)(d) could also be relied upon to require public entities to consult with Indigenous groups and involve these groups in decision-making that will affect their land and associated cultural rights. Importantly, the right goes beyond ‘material’ connections to land and includes ‘spiritual’ connections. Indeed, the right does not require that an Aboriginal person own or reside on the relevant land.68 However, the definition of ‘connection’ may still be restrictive, particularly if Queensland decision-makers adopt the definitions used in native title case law. For example, in Yorta Yorta, the High Court held that in order to establish a connection with land, Indigenous peoples must be able to demonstrate that a connection subsists under laws or customs that have been passed from generation to generation, substantially uninterrupted and which have existed since the time of sovereignty.69 Environment Section 28(2)(e) is based on art 29 of the UNDRIP and provides that Indigenous peoples have the right ‘to conserve and protect the environment and productive capacity of their land, territories, waters, coastal seas and other resources’.70 This right does not appear in the Victorian or ACT human rights legislation. Therefore, there is no case law from these jurisdictions to provide any guidance as to the potential application of this provision.
60 Victorian Equal Opportunity & Human Rights Commission, Aboriginal Cultural Rights in Youth Justice Centres (n 55) 10. 61 Charter of Human Rights and Responsibilities 2006 (Vic) s 19(2)(c). 62 HRA (n 1) s 28(2)(c). 63 Explanatory Notes (n 23) 4, 23. 64 Center For Minority Rights Dev. V Kenya, Comm. 276/2003, 27th ACHPR AAR Annex [Jun 2009-Nov 2009]; Poma v Peru, CCPR/C/95/D/1457/2006. 65 HRA (n 1) s 107. 66 Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238. 67 Länsman v Finland (Communication No 511/1992) at [9.6]. 68 Clark-Ugle v Clark [2016] VSCA 44. 69 Members of the Yorta Yorta Community v Victoria (2002) 214 CLR 422, [47]. 70 Explanatory Notes (n 23) 4, 23.
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Article 29 of the UNDRIP was drafted to protect Indigenous peoples and their environment from the effects of uncontrolled mining, military nuclear testing, pollution and hazardous wastes.71 The Inter-American Court of Human Rights (‘IACHR’) has interpreted art 29 of the UNDRIP as imposing obligations on States to guarantee an environment that does not compromise Indigenous peoples’ exercise of fundamental rights.72 Similarly, the African Commission has clarified that art 29 requires States to take positive measures ‘to prevent pollution and ecological degradation’.73 However, s 28(2)(e) does not include an obligation to restore the environment, as this was intentionally removed from the initial draft of UNDRIP and has not been included in the HRA.74 Foreign jurisdictions considering art 29 have placed considerable emphasis on the importance of consultation and the participation of Indigenous peoples in conduct affecting the environment.75 Therefore, s 28(2)(e) could be relied upon to support consultation and participation of Indigenous groups in relation to policy and practices impacting the environment. Assimilation and Destruction Finally, s 28(3) is based on art 8 of the UNDRIP and provides that Aboriginal and Torres Strait Islander peoples have the right ‘not to be subjected to forced assimilation or destruction of their culture’.76 As with the environmental right discussed above, this right is unique to Queensland and therefore there is no Australian case law providing guidance as to its potential application. Article 8 of the UNDRIP has been interpreted as providing ‘a minimum level of protection for the continued existence of Indigenous communities’.77 Case law concerning art 8 of the UNDRIP has recognised that the protection of rights to land is inherent in the protection of Indigenous culture.78 Therefore, s 28(3) will likely be engaged by actions that limit the use of Indigenous language or cultural expressions, remove children from their families and communities, or dispossess Indigenous peoples from their land.79 Conciliated Outcomes Common outcomes reached in conciliations include: • An acknowledgement of distress; • A private and/or public apology; • Compensation;
71 Errico (n 20) 451-2. 72 IACHR, Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands—Norms and Jurisprudence of the Inter-American Human Rights System, OEA/Ser.L/V/II, Doc 56/09 (30 December 2009) [194], [197], [216ff]. See also (Sipakepense and Mam) of the Sipacapa and San Miguel Ixtahuacán Municipalities in the Department of San Marcos, Guatemala (Inter-American Court of Human Rights, PM 260-07, 20 May 2010). 73 Social and Economic Rights Action Center and Center for Economic and Social Rights v Nigeria, (Communication No 155/1996) (2001) [52]. 74 Errico (n 20) 451-2. 75 Constitutional Tribunal of Peru, Decision No 03343-2007-AA of 19 February 2009; Constitutional Court of Columbia, Decision C-366/11 of 11 May 2011, [13.2], [23.1]. See also See ILO Governing Body, 282nd Session, November 2001, representation under Art 24 of the ILO Constitution, GB.282/14/2, para 36. See also Mahuika v New Zealand (Communication No 547/1993) [9.5] citing Länsman v Finland (Communication No 511/1992). See also Poma v Peru (Communication No 1457/2006) [7.6]. 76 Explanatory Notes (n 23) 4, 23. 77 Jessie Hohmann, ‘Group Identity, Self-determination, and Relations with UNDRIP and the Rights of Indigenous Peoples to Existence and Identity, and Non-Assimilation’ in Jessie Hohmann and Marc Weller (n 16) 152-153. 78 Kichwa Indigenous Peoples of Sarayaku v Equador (Merits and Reparations), IACtHR (2012). See also J Gilbert and C Doyle, ‘A New Dawn over the Land: Shedding Light on Collective Ownership and Consent’ in Allen and Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart 2011) 2; F Lenzerini (ed), Reparations for Indigenous Peoples: International and Comparative Perspectives (Oxford University Press 2008) 295–96. 79 Truth and Reconciliation Commission of Canada (TRC), ‘Honouring the Truth, Reconciling the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada’ (TRC 2015) 55, 133; TRC, ‘Canada, Aboriginal Peoples and Residential Schools: They Came for the Children’ (TRC 2012) 202; Minority Schools in Albania Advisory Opinion, 1935 PCIJ (ser A/B) No 64, 17; Yanomami, Case No 7615 (Brazil) IACHR Res No 12/85 (5 March 1985); Yakye Axa v Paraguay, IACHR, Cancado-Trindade and Ventura Robles (2005). Cf Kruger v Commonwealth (1997) 190 CLR 1.
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• Policy change; • Staff training (e.g. cultural awareness or anti-discrimination training); • Reinstatement of employment or provision of job reference; • Disciplinary measures against individuals involved in a breach; • Provision of goods or services; and • The reversal of a decision.80 In addition to these outcomes, more specific resolutions that might be sought in conciliations concerning s 28 could include the following: • Allowing access to or use of certain land, waters, etc;81 • Ceasing activity that is harmful to the environment and/or implementing restorative measures;82 • Providing services adapted to cultural differences (e.g. providing an interpreter);83 • Removing a ban preventing access to services;84 • Transferring the applicant to different facilities (e.g. health care, aged care or correctional facilities);85 • allowing access to certain educational or other materials in Indigenous languages;86 • Introducing Indigenous cultural and language programs in schools; • Giving Indigenous people priority for jobs that relate to the care of their land or maintenance of their culture;87 • Allowing greater communication and visitation with family members/kin (e.g. in the context of child removal or incarceration);88
• Providing public housing;89 and • Consulting with Indigenous communities in relation to future policies and practices.90
80 See generally Queensland Human Rights Commission, ‘Case Studies’, Resources (Web Page, 29 June 2019)
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In conciliations concerning Aboriginal cultural rights, it is also pertinent that the complainant is entitled to the assistance of an interpreter or another person ‘with appropriate cultural or social knowledge and experience’.91 Furthermore, conciliations may also allow for flexibility in the conduct of the conference. The former Anti- Discrimination Commission Queensland (now the Queensland Human Rights Commission) conducted a ‘shuttle’ conciliation, travelling between the complainant’s and respondent’s respective communities.92 This could be of particular significance for complaints made under s 28, as Indigenous complainants may face barriers to their access to the Queensland Human Rights Commission or may prefer to meet on country.
91 HRA (n 1) s 84. 92 Queensland Human Rights Commission, ‘Aboriginal and Torres Strait Islander Case Studies’, Case Studies (Web Page, 28 June 2019)
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Section 29: Right to Liberty and Security of Person
Sophia Horrocks
‘29 Right to liberty and security of person (1) Every person has the right to liberty and security. (2) A person must not be subjected to arbitrary arrest or detention. (3) A person must not be deprived of the person’s liberty except on grounds, and in accordance with procedures, established by law. (4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against the person. (5) A person who is arrested or detained on a criminal charge— (a) must be promptly brought before a court; and (b) has the right to be brought to trial without unreasonable delay; and (c) must be released if paragraph (a) or (b) is not complied with. (6) A person awaiting trial must not be automatically detained in custody, but the person’s release may be subject to guarantees to appear— (a) for trial; and (b) at any other stage of the judicial proceeding; and (c) if appropriate, for execution of judgment. (7) A person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of the person’s detention, and the court must— (a) make a decision without delay; and (b) order the release of the person if it finds the detention is unlawful. (8) A person must not be imprisoned only because of the person’s inability to perform a contractual obligation.’
Section 29 enshrines the right to liberty and security, which comprises two independent rights.1 An equivalent provision is expressed in both the Victorian Charter of Human Rights and Responsibilities and the ACT Human Rights Act,2 and case law from these jurisdictions will be persuasive when interpreting the Queensland Act. Municipal law outside the framework of human rights legislation may provide guidance, as it already contemplates many concepts contained in s 29. Internationally, art 9 of the International Covenant on Civil and Political Rights (‘ICCPR’)3 and art 5 of the European Convention on Human Rights (‘ECHR’)4 enshrine the right. Subsection 29(8) is drawn from art 11 of the ICCPR. Section 48(3) permits interpretative
1 Queensland Government, Guide: Nature and scope of the protected human rights (June 2019) 40. 2 Charter of Human Rights and Responsibilities 2006 (Vic) s 21; Human Rights Act 2004 (ACT) s 18. 3 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’). 4 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), as amended by Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Amending the Control System of the Convention, opened for signature 13 May 2004, CETS No 194 (entered into force 1 June 2010) (‘ECHR’).
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guidance to be drawn from international law, so the jurisprudence of the UN Human Rights Committee (‘HRC’) as the ICCPR treaty body, and of the European Court of Human Rights (‘ECtHR’), will be persuasive. The right to liberty The right to liberty is recognised municipally and internationally as essential in a democratic society, expressing the fundamental value of freedom.5 Subsections 29(1) to (3) set out the substantive right to liberty, which is afforded to every human being:6 a person must not be arbitrarily arrested or detained, or deprived of their liberty except in accordance with law.7 The terms ‘arrest’ and ‘detention’ are defined in municipal law. An ‘arrest’ does not need to involve physical restraint, but generally requires the person performing the arrest to use words conveying to the person under arrest that they are under compulsion, to which they submit.8 ‘Detention’ involves keeping a person under a form of constraint in both criminal and non-criminal processes.9 Liberty The HRC defines the right as providing freedom from bodily confinement.10 The right addresses restrictions of physical liberty that are more severe than restrictions on freedom of movement,11 which is a distinct right.12 The test applied in Victoria to distinguish between the two rights involves examining the degree or intensity of the constraint, not its nature or substance.13 The test is adopted from ECtHR authority,14 which advises that the inquiry should consider the situation of the affected person and ‘the type, duration, effects and manner of implementation of the measure in question’.15 Adopting this test in Queensland would be consistent with municipal and international law. The fact-focussed inquiry permits the Court to consider the specific circumstances ‘other than the paradigm of confinement in a cell’.16 This is particularly important as deprivation of liberty occurs in numerous and varied circumstances, non-exhaustively including imprisonment, involuntary hospitalisation, quarantining, immigration detention, police custody, remand, and house arrest.17 Limitations of the right The right is not absolute and may be subject to ‘reasonable limits that can be demonstrably justified’.18 In Al Masri,19 the right was described as including the rights not to be arbitrarily arrested or detained, and not to be unlawfully deprived of liberty.20 A person may be arrested or detained if it is lawful and not arbitrary.
5 Kracke v Mental Health Review Board (2009) 29 VAR 1 [665]; Antunovic v Dawson (2010) 30 VR 355, 370–71 [65]–[67]; Medvedyev v France (European Court of Human Rights, Grand Chamber, Application No 3394/03, 29 March 2010) [76]. 6 sub-s (1). 7 sub-ss (2) and (3). 8 Hatzinikolaou v Snape (1989) 97 FLR 86, 90–91, citing Alderson v Booth [1969] 2 QB 216, 220; R v Sica [2012] QSC 429 [116]; R v O’Donoghue (1988) 34 A Crim R 397. 9 LexisNexis, Halsbury’s Laws of Australia (online at 20 March 2020) Civil and Political Rights, ‘(C) Right not to be subjected to arbitrary detention’ [80-1065]. Human Rights Committee, General Comment No. 35 (2014) on article 9 (Liberty and security of person) of the International Covenant on Civil and Political Rights, 112th sess, UN Doc CCPR/C/GC/35 (16 December 2014) (‘General Comment’) [3]. 11 Ibid [5]; Kracke v Mental Health Review Board (2009) 29 VAR 1 [664]. 12 Antunovic v Dawson (2010) 30 VR 355, 372 [72]; Human Rights Act 2019 (Qld) s 19; ICCPR art 12; Charter of Human Rights and Responsibilities 2006 (Vic) s 12. 13 Kracke v Mental Health Review Board (2009) 29 VAR 1 [664]; DPP v Kaba (2014) 44 VR 526; Woods v DPP [2014] VSC 1 [13]. 14 DPP v Kaba (2014) 44 VR 526, 558 [110]. 15 Austin v United Kingdom (2012) 55 EHRR 14 [57], cited in DPP v Kaba (2014) 44 VR 526, 558 [110]. 16 European Court of Human Rights, Guide on Article 5 of the European Convention on Human Rights (31 December 2019)
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The term ‘arbitrary’ is not equivalent to ‘unlawful’.21 Rather, it comprises ‘elements of inappropriateness, injustice, lack of predictability and due process of the law’,22 and unreasonableness in terms of being disproportionate to a legitimate aim.23 The Victorian Government Solicitor’s Office advises a decision to arrest or detain could be both lawful and arbitrary if the merits of the decision are disregarded, or if the law pursuant to which the decision is made is arbitrary.24 If the decision has no legal basis, it is probably arbitrary.25 As to the meaning of ‘lawful’, the HRC has repeatedly confirmed that a deprivation of liberty must be lawful under both domestic and international law.26 Australia has rejected this approach, considering ‘lawful’ to refer only to domestic law,27 and the Queensland legislature has followed this interpretation.28 Information given to the person under arrest Under s 29(4) a person must (a) be informed at the time of arrest or detention of the reason for it and (b) be promptly informed of proceedings to be brought against them. This expands upon the equivalent ICCPR provision, which only applies to arrest.29 ECtHR jurisprudence indicates that s 29(4)(a) applies in criminal and non-criminal processes,30 which should be followed in Queensland to afford the procedural safeguard in all cases of deprivation of liberty. Subsection (b) only applies in criminal cases.31 In Queensland, an arrest is still lawful even if reasons are not given at the time of arrest.32 Under common law, reasons must be given within a reasonable time after arrest. A statement of the alleged offence without technical language will suffice. Pursuant to international law, reasons should be given in a language the person understands.33 Against this background, s 29(4)(a) could be interpreted as strengthening the importance of providing reasons at the time of arrest, enabling persons to quickly decide whether to question the lawfulness of their detention.34 Promptly brought before a court Subsection 29(5)(a) requires that a person ‘arrested or detained on a criminal charge (a) must be promptly brought before a court’. Otherwise, the person must be released.35 This applies to the early stages of custody and is intended to subject executive interference with liberty to early, automatic judicial scrutiny. Therefore, it must not depend on the person’s own application, and requires the detained person’s physical appearance before the court.36 The mandatory terminology favours a strict interpretation. In accordance with the ECtHR interpretation,37 courts should be empowered to review the legality and merits of the decision, strengthening this procedural safeguard.
21 Ibid; Mukong v Cameroon (1995) 2 IHRR 131 [9.8]. 22 Explanatory Notes, Human Rights Bill 2018 (Qld) 24. 23 Queensland Government, Guide: Nature and scope of the protected human rights (June 2019) 40. 24 Victorian Government Solicitor’s Office, ‘Section 21: Right to Liberty and Security’, The Charter Guidelines (23 August 2017) 133
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The HRC interprets ‘prompt’ as being less than 48 hours but advises that stricter domestic limits should be followed.38 In Queensland, appearance before a judge must occur ‘as soon as reasonably practicable’,39 and acceptable timeframes under this approach are stricter than 48 hours. Courts consider all the evidence such as the time of arrest, court availability,40 and an arresting officer’s statutory entitlement to investigate the person.41 In Wang, it took police less than an hour to complete the paperwork necessary for a person in custody to appear before a court. Absent extenuating factors, there was ‘no good reason’ for the plaintiff not to have appeared after this time.42 Comparatively, in Frugtniet fourteen hours was reasonable in complex circumstances, although acknowledged to be long.43 Therefore, this subsection should be applied in accordance with the municipal approach. Trial without unreasonable delay Subsection 29(5)(b) addresses the duration of pre-trial detention.44 Similarly to s 29(5)(a), failure to satisfy this requirement means the person must be released.45 However in Queensland, substantial delay has been found insufficient to justify bail.46 Therefore, this subsection should be interpreted as requiring such a refusal of bail to meet the demonstrably justifiable threshold.47 Whether delay is unreasonable should be assessed in the specific circumstances to determine if detention is justified, in light of the presumption of innocence.48 The section may practically strengthen the significance of factors against refusing bail, such as the potential for spending more time on remand than serving the sentence, as in Gray v DPP.49 Awaiting trial Under s 29(6) ‘a person awaiting trial must not be automatically detained’ although their release may conditional upon guarantees to appear during the proceeding. This prohibits mandatory detention on remand. Consequently, the ACT Supreme Court has declared that a legislative presumption against bail is incompatible,50 although this does not affect the validity of such legislation.51 Courts in the ACT and Victoria have recognised that refusing bail is not inconsistent with the right if the applicable bail legislation and conditions imposed are reasonable and justifiable.52 In the ACT, the right requires a liberal interpretation of provisions favouring bail.53 This accords with the common law presumption in favour of liberty.54 There is extensive practical guidance on considering bail in light of this right. The HRC advises that remand must be lawful and necessary in the circumstances, such as to prevent reoccurrence of the crime, tampering with evidence, or flight.55 In accordance with jurisprudence from the ECtHR and the ACT, the Victorian court similarly held in Woods that the particular circumstances must be considered.56 Merely holding a reasonable
38 General Comment [33]. 39 Police Powers and Responsibilities Act 2000 (Qld) s 393. 40 Wills v Whiteside; Ex parte Wills [1987] 2 Qd R 284, citing Williams v R (1986) 161 CLR 278, 283; General Comment [33]. 41 Martin v R [2015] ACTCA 38 [62]. 42 Wang v NSW [2018] NSWDC 375 [245], [256], [328]. 43 Frugtniet v R [1999] 2 VR 297. 44 VGSO 136. 45 s 29(5)(c). 46 Lacey v DPP [2007] QCA 413 [13]. 47 Human Rights Act 2019 (Qld) s 13. 48 European Court of Human Rights, Guide on Article 5 of the European Convention on Human Rights (31 December 2019)
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suspicion of guilt is insufficient to refuse bail.57 A specific ground must be shown, such as securing appearance at trial, and there must be no alternative.58 Applying to the court in relation to the lawfulness of detention Subsection 29(7) expresses the doctrine of habeas corpus,59 entitling a person who has been arrested or detained to ‘apply to a court for a declaration or order regarding the lawfulness of…detention’. The court must decide without delay and if it finds the detention unlawful, the person’s release must be ordered. This is intended to provide for recourse to independent judicial review, and executive review will not suffice.60 Bell J of the Victorian Supreme Court advises the court’s habeas corpus jurisdiction will play a significant role in satisfying this section,61 creating a ‘swift and imperative remedy’ to unlawful detention.62 The right should be interpreted as arising from the time of arrest,63 in accordance with High Court obiter that arrest is the commencement of imprisonment.64 The requirement of being heard ‘without delay’ is strict, due to the seriousness of interferences with liberty.65 The subsection should apply in criminal and non-criminal scenarios, in accordance with the interpretation in s 29(2) and the equivalent ICCPR provision.66 Automatic periodic review of detention may satisfy this provision if decisions addressing legality are given at reasonable intervals.67 The term ‘lawfulness’ would only encompass domestic law, as in s 29(3). The right to security of person The right to security, distinct from the right to liberty, protects ‘bodily and mental integrity, or freedom from injury to the body and mind’.68 There is little domestic jurisprudence to guide interpretation. The HRC interprets the right as placing a positive obligation on States parties to implement measures ‘to protect individuals from foreseeable threats to life or bodily integrity’.69 This involves consideration of whether there was an objective need for the State to provide protective measures guaranteeing security in the circumstances,70 such as where there have been credible death threats.71 The right applies to persons threatened outside or inside detention, by public or private actors.72 For example, it might involve correction facility staff unjustifiably injuring a prisoner,73 or the failure of police to respond to domestic violence complaints.74 If the State knows of the threat but does not respond with appropriate measures, it may have violated the right.75
57 Woods v DPP (2014) 238 A Crim R 84 [23], citing Aleksanyan v Russia (2011) 52 EHRR 18. 58 Ibid [25]–[28]; Human Rights Committee, Working Group on Arbitrary Detention, Opinion No. 2/2019 concerning Huyen Thu Thi Tran and Isabella Lee Pin Loong (Australia), UN Doc A/HRC/WGAD/2019/2 (6 June 2019) [61]. 59 VGSO 137. 60 Human Rights Committee, Views: Communication No 291/1998, 38th sess, UN Doc CCPR/C/38/D/291/1988 (5 April 1990) [7.2] (‘Torres v Finland’). 61 Antunovic v Dawson (2010) 30 VR 355, 373 [80]. 62 Secretary of State for Home Affairs v O’Brien [1923] AC 603, 609 (per Lord Birkenhead), cited in Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36, 77 (per Isaacs J). 63 General Comment [42]. 64 Williams v R (1986) 161 CLR 278, 306. 65 European Court of Human Rights, Guide on Article 5 of the European Convention on Human Rights (31 December 2019) 45 [270]
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However, there is no clear means of determining when a State can be said to know of the threat and thus be required to take appropriate measures. Guidance provided by the Victorian Government Solicitor suggests following the test that applies to the right to life formulated by the ECtHR. On this interpretation, if a State authority knows or ought to have known of a real and immediate threat to personal security (rather than ‘life’), it must take all reasonable steps to avert the threat.76 However, threats to personal security casts a much wider net than threats to life. Requiring the State to have actually known about the threat before a breach is found may be more realistic. Both interpretations would require authorities to carefully assess and respond to credible threats to personal security.77
Inability to perform contractual obligations Subsection 29(8) prohibits civil imprisonment,78 including for failure to pay ‘monetary debts arising from private civil law obligations’.79 This right reflects art 11 of the ICCPR, which is non-derogable ‘because [its] suspension is irrelevant to the legitimate control of the state of national emergency’.80 However, in Queensland this right is subject to demonstrably justified limits. In Victoria the power to imprison a defaulting surety under legislation was found to be a reasonable limit upon human rights.81 Conciliated Outcomes The range of instances in which wrongful deprivation of liberty can arise suggests that desirable conciliated outcomes may vary significantly. The following may be the most likely outcomes sought:82 • Financial compensation; • An apology; and • Procedural improvements with personnel training. The first two recognise the harm and are the most common conciliation outcomes,83 and the third demonstrates the public entity’s commitment to preventing recurrence. The right to liberty under the ICCPR and ECHR includes an enforceable right to compensation for breaches,84 indicating that compensation may be an appropriate remedy. Financial compensation acknowledges the public entity has wronged the complainant,85 and the seriousness of interferences with liberty may mean clients primarily seek this outcome. In municipal discrimination contexts,86 and internationally,87 it has been considered appropriate to remedy stress, suffering and hurt. Advantageously, the outcome requires both parties to agree, whereas decisions of the UN Human Rights Council ordering Australia to compensate arbitrary detention are consistently disregarded.88
76 VGSO 135. 77 General comment [9]. 78 Woods v DPP (2014) 238 A Crim R 84 [10]. 79 VGSO 185. 80 Human Rights Committee, General Comment No. 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, 52nd sess, UN Doc CCPR/C/GC/35 (4 November 1994) [10]. 81 JR Mokbel Pty Ltd v DPP [2007] VSC 119 [105]. 82 Victorian Equal Opportunity and Human Rights Commission, ‘Complaint process’ (Web Page)
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A sincere apology acknowledging wrongdoing and hurt can facilitate healing and a restoration of dignity.89 Conciliation outcomes in the discrimination context indicate apologies are often accompanied by compensation.90 The beneficial application of these outcomes for wrongful deprivation of liberty, although outside conciliation processes, is illustrated in the Independent Broad-based Anti-corruption Commission’s ‘Operation Yalgar’.91 The complainant believed she had been unlawfully arrested and detained but was unsuccessful in civil proceedings and unsatisfied with internal reviews. The UN Human Rights Council upheld her complaint and Victoria Police subsequently issued financial compensation and apologised. The Victorian Government also reformed the relevant legislation to allow compensation for victims of police misconduct. Preventing recurrence of the violation may require systemic change. Discrete arrest and detention procedures could be improved based on identified deficiencies by incorporating human rights considerations. Relevant personnel should be trained to identify the right and consider the merits of deciding to limit it. This approach was recommended in Victoria as an audit found 34% of files examined did not appropriately address human rights.92 Systemic improvements may also promulgate a human rights culture within the relevant public entity.93
89 Bair v Goldpath Pty Ltd & Callinan [2010] QCAT 483 [32]. 90 Dominique Allen, ‘Remedying Discrimination by Court Order and Agreement: A Case Study of Queensland’ SSRN (Working Paper, 22 February 2011) 14
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Section 30(1): Right to Humane Treatment when Deprived of Liberty
Brooke Nickerson and Alexia Cuss ‘30 Humane treatment when deprived of liberty (1) All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. …’ Interpretation Section 30(1) of the Human Rights Act 2019 (Qld) (‘HRA’) is modelled on art 10(1) of the International Covenant on Civil and Political Relations (‘ICCPR’)1 and is almost identical to the equivalent right found in New Zealand,2 the ACT3 and Victoria.4 The right applies to persons who are ‘deprived of liberty’ in places of detention, such as prisons or psychiatric facilities in Queensland.5 ‘Treated with Humanity’ and ‘Dignity’ Several principles emerge from domestic and international jurisprudence which are instructive on how the words ‘treated with humanity’ and ‘dignity’ should be interpreted. European Court of Human Rights - Applying article 10(1) of the ICCPR Article 10(1) imposes a ‘positive obligation’ 6 on the State to ‘ensure that a person is detained in conditions which are compatible with respect for their human dignity’. 7 This requires the State to provide persons deprived of liberty with certain minimum services to meet their ‘basic [human] needs’ (outlined in the United Nations Standard Minimum Rules for the Treatment of Prisoners).8 This includes the provision of adequate quality food, clothing, bedding, medical care, sanitary facilities, recreation and exercise, communication, light and ventilation.9 A person who is detained must not be subjected to ‘distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention’.10
1 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, vol. 999 UNTS 171, entered into force on 23 March 1976. 2 Bill of Rights Act 1990 (NZ) s 23(5). 3 Human Rights Act 2004 (ACT) s 19(1). 4 Charter of Human Rights and Responsibilities Act 2006 (Vic) s 22(1) (‘Victorian Charter’). 5 Explanatory Notes, Human Rights Bill 2008 (‘Explanatory Notes’) 25. In the ACT, this also extends to the process of grant of parole: ZS v Sentence Administration Board [2018] ACTSC 289 [138]. In Victoria, this also applies to pre-trial detention, as well as detention after conviction: Victorian Government Solicitor’s Office, Charter Guidelines: Section 22 – Humane treatment when deprived of liberty (23 August 2017)
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New Zealand Courts - Applying section 23(5) of the Bill of Rights Act 1990 (NZ) Section 23(5) imposes a positive duty of ‘humane treatment’,11 which is treatment ‘as befits a human being with compassion’.12 This section is focused on protecting persons from conduct ‘lacking humanity’.13 This has been described as conduct which ‘… lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so’.14 The failure of a State to meet detained peoples’ basic needs, as outlined above in relation to the provision of minimum services, amounts to a violation of the right.15 Victorian Courts - Applying section 22(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) A necessary consequence of the deprivation of liberty is that ‘rights and freedoms which are enjoyed by other citizens will necessarily be ‘curtailed’, “attenuated” and “qualified” merely by reason of the deprivation of liberty’ (for example, freedom of movement).16 A person who is deprived of liberty otherwise retains all their rights.17 Whilst the act of detention alone does not violate section 22(1), the specific conditions of that detention can.18 An evaluation of the specific circumstances is required, and the conduct must be found to have a degree of severity to violate s 22(1).19 This is because: “[N]ot every act which causes inconvenience, distress or even pain is inhumane; and not every act which limits the rights and freedoms of individuals can be said to be made without respect for the person’s dignity.”20 Case Examples United Nations Human Rights Committee The Human Rights Committee has found a breach of art 10(1) of the ICCPR where detainees were: • held in ‘incommunicado’ detention;21 • refused medical attention;22 • detained in freezing temperatures;23
[172]-[173], citing Castles v Secretary to the Department of Justice [2010] VSC 310 [108]; De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111 [111]; Re HL (No 2) [2017] VSC 1 [125]; and Haigh v Ryan [2018] VSC 474 [84]. 11 Taunoa v Attorney-General (2004) 7 HRNZ 379 [7], [273]; Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322 [56]. 12 Taunoa v Attorney-General (2004) 7 HRNZ 379 [275]; Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322 [57]. 13 B v Waitemata District Health Board [2017] NZSC 88 [56]. 14 Taunoa v Attorney-General (2004) 7 HRNZ 379 [177], cited in De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111 [116]. 15 Ibid [157], citing Becciev v Moldova (2007) 45 EHRR 11. 16 De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111 [111], citing R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 [5]. This is also recognised in the Explanatory Notes 25, with the Explanatory Notes going on to say that this position reflects the fact that punishment is intended to be limited to the deprivation of liberty. 17 Victorian Charter Guidelines. 18 Haigh v Ryan [2018] VSC 474 [85]. 19 Haigh v Ryan [2018] VSC 474 [86]; Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322 [66]. 20 De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111 [127], where it was held that a no smoking policy within a mental health facility did not violate s 22(1) as the policy was introduced for the purpose of protecting people from the known harmful effects of smoking. 21 Human Rights Committee, Views: Communication No. 577/1994, UN Doc CCPR/C/61/D/577/1994 (9 January 1998) (‘Espinoza de Polay v Peru’); Human Rights Committee, Views: Communication No. 43/1979, UN Doc CCPR/C/19/D/43/1979 (21 July 1983) (‘Caldas v Uruguay’); Human Rights Committee, Views: Communication Nos. 1231/2003 and 1241/2004, UN Doc CCPR/C/92/D/1209 (17 March 2008 to 4 April 2008) (‘Sharifova v Tajikistan’); Human Rights Committee, Views: Communication No. 1449/2006, UN Doc CCPR/C/100/D/1449/2006 (29 October 2010) (‘Umarova v Uzbekistan’). 22 Mpandanjila v Zaire, UN Doc CCPR/C/27/D/138/1983. 23 Campos v Peru, UN Doc CCPR/C/61/D/577/1994.
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• held in solitary confinement for a long period of time;24 • held in a small triangular cage awaiting court appearance;25 • deprived of food for three days;26 • without clean clothing, personal hygiene items and no bedding;27 • without adequate sanitation, lighting, ventilation or palatable food;28 and • without re-education and work programs.29 New Zealand In Taunoa,30 the Supreme Court of New Zealand found that the treatment of five prisoners under a behaviour management programme constituted a breach of s 23(5) of the Bill of Rights Act 1990. The programme included: • segregation from other prisoners for between 22-23 hours a day; • loss of conditions while segregated; • a poor standard of hygiene; • small cells with poor natural lighting and deficient ventilation; • inadequate opportunity to exercise outside; • routine strip searches in breach of legislative requirements; • no rehabilitation programs; and • inadequate monitoring of inmate mental health. In Attorney-General v Udompun,31 the New Zealand Court of Appeal found that the failure to provide sanitary products and clean clothing over a 23 hour period to an illegal immigrant held in prison pending deportation constituted a breach of s 23(5). In Vogel v Attorney-General the Court made a declaration that the appellant’s cell confinement for 21 days was in breach of his rights under s 23(5).32 Australian Capital Territory In Islam v DJCS the failure to provide vegetarian food to a prisoner who was a practising Muslim was found to be a breach of s 19(1) of the Human Rights Act 2004 (ACT).33
24 Manera v Uruguay, UN Doc CCPR/C/21/D/123/1982 where a man was held in solitary confinement for eight months with the electric lights continuously turned on; Umarova v Uzbekistan where a man was held in an isolated holding cell for 19 days. 25 Cabal & Passini v Australia, UN Doc CCPR/C/78/D/1020/2001. 26 Sharifova v Tajikistan. 27 Umarova v Uzbekistan. 28 Human Rights Committee, Views: Communication No. 619/1995, UN Doc CCPR/C/62/D/619/1995 (4 June 1998) (‘Deidrick v Jamaica’); Human Rights Committee, Views: Communication No. 720/1996, UN Doc CCPR/C/64/D/720/1996 (25 November 1998) (‘Morgan & Williams v Jamaica’); Human Rights Committee, Views: Communication No. 704/1996, UN Doc CCPR/C/62/D/704/1996 (‘Shaw v Jamaica’). 29 Shaw v Jamaica. 30 Taunoa v Attorney-General (2004) 7 HRNZ 379. 31 [2005] 3 NZLR 204 32 [2013] NZCA 545. 33 Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322 [65]. On the basis that the choice to be vegetarian for religious reasons is an option that is not limited by the fact that the prisoner has been deprived of liberty.
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Victoria In Dale v Director of Public Prosecutions, a dangerous prisoner was subject to isolation, strip searches, shackling with leg irons when out of the unit and a requirement that he avoid eye contact with other prisoners. The Court of Appeal noted such conditions may raise questions under s 22(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic), although it declined to express a definitive view.34
In Castles,35 Emerton J found that a woman prisoner had a right to IVF treatment which was both reasonable and necessary for the preservation of her health.36 In Haigh,37 the Supreme Court of Victoria was not persuaded that withholding of four tarot cards from a prisoner engaged or curtailed his right to be treated with humanity. Conciliated Outcomes There is no stand-alone legal remedy for a contravention of the HRA. 38 In relation to court proceedings, a person may only bring a human rights claim together with a different cause of action. 39 The remedy that is available is the one in relation to the other cause of action. 40 These remedies include, but are not limited to, declaratory and injunctive relief,41 order to compel performance of duty (mandamus),42 order of certiorari quashing or setting aside the decision of a public authority,43 or judicial review.44 In relation to a conciliation, there are three main outcomes a person may seek if they make a complaint against a public entity: an apology,45 an agreement to implement practices and policies to rectify the breach,46 and compensation.47 An agreement to implement practices and policies to rectify the breach was identified by Lord Bingham in R (Greenfield) v Secretary of State for the Home Department as being more important than compensation; Lord Bingham said: ‘where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance.’48 A further example of this can be found in the case of Islam v DJCS, where the plaintiff sought an order that the defendant take reasonable steps to replace the current food ordering system.49 Damages are not available for a contravention of the HRA.50 However, in New Zealand damages may be awarded where they are necessary to provide an effective remedy for breach of the Bill of Rights Act 1990.51 Indeed, in Taunoa52 damages were awarded to the plaintiffs for the breaches of their rights. Additionally, the
34 [2009] VSCA 212 [38]. 35 Castles v Secretary to the Department of Justice [2010] VSC 310. 36 The principle issue was determined on the basis of the express right under section 47(1)(f) of the Corrections Act 1986 (Vic) for prisoners to have access to reasonable medical care and treatment necessary for the preservation of their health. However, the application of section 22(1) of the Charter served to confirm the interpretation that had been arrived at: [4]. A fundamental aspect of section 22(1) of the Charter is the access to health care: [108]. Although, Her Honour noted that “the dignity right does not encompass the right to any and all medical treatment that is available in the community. The right of prisoners to medical treatment is a more limited one, but one that guarantees that the health of prisoners is protected and accorded no less importance than the health of other members of the community”: [113]. 37 Haigh v Ryan [2018] VSC 474. 38 Explanatory Notes 7-8. 39 Ibid. 40 Ibid. 41 Castles v Secretary to the Department of Justice [2010] VSC 310 [1]. 42 Weaven v The Secretary of the Department of Justice [2012] VSC 582. 43 Kheir v Robertson [2019] VSC 422. 44 Haigh v Ryan [2018] VSC 474. 45 Australian Human Rights Commission, Understanding and preparing for conciliation – Human rights and ILO (14 December 2012)
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United Nations Human Rights Committee has also recommended that complainants be monetarily compensated for their losses caused by a breach of art 10(1) of the ICCPR.53
53 See, eg, Barkovsky v Belarus, UN Doc CCPR/C/123/D/2247/2013 5 [8].
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Section 30(2)-(3): Rights of Prisoners on Remand
Clare Foran and Rachel Tomassen
‘30 Humane treatment when deprived of liberty
…
(2) An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, unless reasonably necessary.
(3) An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.’
Sections 30(2) and 30(3) of the Human Rights Act 2019 (Qld) (‘HRA’) are modelled on art 10(2)(a) of the International Covenant on Civil and Political Rights (‘ICCPR’).1 These provisions are textually identical to ss 22(2) and (3) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’) and almost identical to ss 19(2) and (3) of the Human Rights Act 2004 (ACT). Interpretation ‘Accused person’ or a ‘person detained without charge’ While s 30(1) reflects the rights of all persons detained in custody, the rights contained in ss 30(2) and 30(3) are additional rights, granted to ‘accused persons’ or ‘persons held without charge’. ‘Accused persons’ may also be referred to as ‘prisoners on remand’, ’unconvicted prisoners’, or ‘untried prisoners’. While the ACT right is restricted to ‘accused persons’, the HRA mirrors the Victorian Charter and explicitly includes ‘persons detained without charge’, which includes ’persons subject to preventative detention orders’, such as those detained under section 13ZB of the Terrorism (Community Protection) Act 2003 (Vic).2 General Comment No. 21 of the UN Human Rights Committee (‘HRC’) indicates that the right to humane treatment in art 10(1) of the ICCPR should be given broad application and extend to people who are deprived of liberty in hospitals, detention camps or correctional institutions.3 The current human rights legislation in Australia cannot extend to individuals in immigration detention because none of the Acts apply to the Commonwealth government.4 There is debate, however, about whether these rights protect involuntary hospital residents or individuals subject to ongoing detention orders. Guidance from the ACT Human Rights Commission suggests that they would apply a broad definition that extends to involuntary hospital residents, although there is no judicial authority to confirm this.5 This is not the case in Victoria. In the case of De Bruyn v Victorian Institute of Forensic Mental Health, the Victorian Supreme Court ruled held that equivalent Victorian provisions did not apply to an involuntary resident of a hospital who was found ‘not guilty’ on the grounds of insanity but was subject to a detention order.6 This was because ‘the charge was causally connected to his detention’.7
1 Explanatory Notes, Human Rights Bill 2018 (Qld) 25; International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 14668 UNTS 999 (entered into force 23 March 1976). 2 Explanatory Notes, Charter of Human Rights and Responsibilities Bill 2006 (Vic) 17. 3 Human Rights Committee, General Comment No 21: Article 10 (Humane treatment of persons deprived of their liberty), 44th sess, UN Doc HRI/GEN/1/Rev.9 (Vol. I) (10 April 1992) [2]. 4 ACT Human Rights Commission, Collation of Factsheets on each right under the ACT Human Rights Act 2004 (February 2015) 32. 5 ACT Human Rights Commission, Collation of Factsheets on each right under the ACT Human Rights Act 2004 (February 2015) 31. 6 De Bruyn v Victorian Institute of Forensic Mental Health [2016] VSC 111 [180] (‘De Bruyn’). 7 Ibid [180] - [182].
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In DPP v JPH (No 2), however, the Victorian Supreme Court held that individuals subject to ongoing detention orders were included in the class of people protected by these rights.8 It should be noted, however, that this decision turned on the fact that the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) provided that prisoners held under these orders were ‘unconvicted prisoners’.9 This can be distinguished from the equivalent legislation in Queensland, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), which provides that ‘a person who is subject to a continuing detention order…remains a prisoner’.10 Section 30(2): The Right to Segregation According to General Comment 21, ‘segregation is required in order to emphasize [prisoners’] status as unconvicted persons who at the same time enjoy the right to be presumed innocent’.11 The principle of segregation is affirmed in various non-binding international instruments – for example, in rule 112(1) of the Standard Minimum Rules for the Treatment of Prisoners (‘the Mandela Rules’), which is a set of universally acknowledged minimum standards adopted by the UN General Assembly in 2015.12 The HRC, in Pinkney v Canada, held that prisoners on remand must be separated from prisoners who are currently serving their sentences but not from other remand prisoners who have previous convictions.13 In order to be ‘segregated’ these prisoners had to be held in separate accommodation but not necessarily be kept in separate buildings or apart at all times. The HRC agreed that it was okay for prisoners to mix ‘to the extent it is inevitable from the nature of their duties’, such as having convicted prisoners serve as ‘food servers and cleaners in the remand area of the prison’.14 In this situation, contact between remand and sentenced prisoners should be kept to ‘a minimum necessary for the performance of those tasks’.15 This reflects the Mandela rules which state that untried persons shall sleep singly in separate rooms, with the reservation of different local custom in respect of climate.16 While the requirement of segregation suggests that remand prisoners should not be compelled to undertake activities with convicted prisoners, international jurisprudence suggests that segregation cannot be used to prevent remand prisoners from undertaking activities which they wish to participate in, especially where they may have a right to those activities. For example, the European Court of Human Rights in Velyo Velv v Bulgaria, held that a remand prisoner had the right to attend school along with convicted prisoners.17 Section 30(2): Limitation of this Right The segregation of prisoners is a standard that Australia has never managed to achieve despite having a reservation to art 10(2)(a) of the ICCPR, stating that it was ‘an objective to be achieved progressively’.18 To reflect the reality of non-compliance, this right has special legislated limitations. Section 5A of the Corrective Services Act 2006 (Qld) states that a decision of the chief executive or corrective services officer in relation to s 30(2) will not be unlawful if it takes into account ‘the security and good management of corrective services facilities’ or ‘the safe custody and welfare of all prisoners’.19
8 DPP v JPH (No 2) [2014] VSC 177 [21], [76], [116] (‘JPH’). 9 Serious Ex Offenders (Detention and Supervision) Act 2009 (Vic) s 115(1)-(2); JPH (n 8) [135]-[137]. 10 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 43A(2). 11 Human Rights Committee, General Comment No 21: Article 10 (Humane treatment of persons deprived of their liberty), 44th sess, UN Doc HRI/GEN/1/Rev.9 (Vol. I) (10 April 1992) [9]. 12 United Nations Office on Drugs and Crime, The United Nations Standard Minimum Rules for the Treatment of Prisoners: An updated blueprint for prison management in the 21st century. 13 Human Rights Committee, Views: Communication No R.7/27, UN Doc CCPR/C/OP/1 (25 November 1977) [12.7]. 14 Ibid [28]. 15 Ibid [30]. 16 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) , GA Res 70/175, UN Doc A/RES/70/175 (8 January 2016) rule 113 (‘The Mandela Rules’). 17 Velyo Velv v Bulgaria [2014] ECHR 711. 18 Cabal and Pasini v Australia, Communication No 1020/2001, UN Doc. CCPR/C/78/D/1020/2001 (2003) [3.4], [7.4] (‘Cabal and Pasini v Australia’ ). 19 Corrective Services Act 2006 (Qld) s 5A.
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The clause referring to ‘the safe custody and welfare of prisoners’ would allow decision-makers to legitimately prioritise the physical safety of other prisoners over the remand prisoner’s right to segregation. This is significant because there is no hierarchy of rights within the HRA. The ‘security and good management of corrective services facilities’ clause would then appear to allow decision-makers to take into account practical and physical limitations which might render segregation impossible, such as the overcrowding of Queensland prisons. It should be noted that Queensland Corrective Services’s annual report stated that in June 2019, Queensland men’s secure prisons were at over 130 per cent capacity.20 This clause seems to be a response to the court’s findings in Certain Children v Minister For Families and Children & Ors (No 2),21 where Dixon J gave little weight to the argument that an accommodation shortage justified the limitations placed on the Victorian equivalent of s 30(1).22 The words ‘unless reasonably necessary’ contained in s 30(2) also provide the section with an internal limitation which is much broader than the limitation in the Human Rights Act 2004 (ACT) or the ICCPR, under which remand prisoners must be segregated ‘except in exceptional circumstances’.23 This is in addition to the proportionality assessment required under s 13 of the HRA which applies to all rights. These limitations suggest that the failure to segregate remand prisoners from convicted prisoners will only give rise to a successful legal action under s 58(1) of the HRA in extreme circumstances. Section 30(3): ‘Appropriate Treatment’ The HRC considered the meaning of ‘appropriate treatment’ in Cabal and Pasini v Australia and found that remand prisoners can be treated similarly to convicted prisoners so long as that treatment is not incompatible with their status as an unconvicted prisoner.24 In this case, the applicants argued that they were not given special treatment because they were subjected to the same daily routine and restrictions as other prisoners, including being issued with a Criminal Record Number which they had to call out to identify themselves. The committee found this claim to be inadmissible because the applicants failed to argue why this treatment was incompatible with art 10(2)(a) of the ICCPR.25 In Re HL, Elliot J held that although sub-s (3) must be construed within the broader context of humane treatment, it has a ‘different and narrower scope’, which extends the concept of segregation and requires ‘differential treatment’.26 This reflects the international standard which requires that the State party explain how the treatment of accused persons differs from that of convicted persons.27 Elliot J referred to Cabal which endorsed the Mandela Rules and held that ‘appropriate treatment’ includes the ‘right to wear their own clothes, [make] telephone calls, and …eat their own food’.28 In Certain Children, the court noted in obiter that this also included ‘access to library and recreational activities’.29 Further guidance can be drawn from the Mandela Rules which further include the right to have: • Prison dress distinct from convicted prison dress (rule 115); • The opportunity but not requirement for paid work (rule 116); • Visits from the prisoner’s personal doctor or dentist (rule 118); and
20 Queensland Corrective Services, 2018-2019 Annual Report 13. 21 Certain Children v Minister For Families and Children & Ors (No 2) (2017) 266 A Crim R 152 (‘Certain Children’). 22 Ibid [458]. 23 Human Rights Act 2004 (ACT) s 19(2). 24 Cabal and Pasini v Australia (n 18) [7.5]. 25 Ibid. 26 Re Application for Bail by HL (No 2) [2017] VSC 1 [129]. 27 Human Rights Committee, General Comment No. 21: Article 10 (Humane treatment of persons deprived of their liberty), 44th sess, UN Doc HRI/GEN/1/Rev.9 (10 April 1992), [90]. 28 Cabal and Pasini v Australia (n 18) [7.5]. 29 Certain Children (n 21) [231].
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• Access to legal advisers and legal aid where available (rules 119 and 120).30 Although the 2012 Standard Guidelines for Corrections in Australia generally reflected these principles, the 2018 revision of those guidelines does not.31 The 2018 revision takes a different approach and is comprised of ‘core outcome focused principles’ rather than a list of minimum standards. It generally provides that ‘remand prisoners are subject to fewer restrictions’ so long as they do not ‘adversely affect good order, safety and security’.32 Conciliated Outcomes Clients may seek the following conciliated outcomes when making a claim under ss 30(2) or 30(3) of the HRA: • Changes to QCS’ Custodial Operations Practice Directives’ (‘COPDs’); • Individual permission to access any of their ‘appropriate’ treatment (For example, in De Bruyn, the applicant was seeking to be exempt from the ‘smoke free policy’ which the medical facility was implementing);33 • Individual permission to be housed separately from sentenced prisoners; or • QCS issuing an apology or ‘statement of regret’ about the mixing of remandees with sentenced prisoners. Compensation may not be appropriate for prisoners while incarcerated, but may assist prisoners once discharged.
30 The Mandela Rules (n 16). 31 Corrective Services Administrators’ Council, Guiding Principles for Corrections in Australia (2018); cf Corrective Services Administrators’ Council, Standard Guidelines for Corrections in Australia (2012), guidelines 1.9 – 1.17. 32 Corrective Services Administrator Council, Guiding Principles for Corrections in Australia (Revised 2018), 2.3.9. 33 De Bruyn (n 6) [176]-[182].
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Section 31: Right to a Fair Hearing
Fergus Rees
‘31 Fair Hearing
(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(2) However, a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or the interests of justice.
(3) All judgments or decisions made by a court or tribunal in a proceeding must be publicly available.’
The right to a fair hearing is a ‘cardinal requirement of the rule of law’.1 Section 31 of the Human Rights Act 2019 (Qld) (‘HRA’) enshrines a positive right to a fair and public hearing by an impartial court or tribunal. Section 31 is largely based upon art 14(1) of the International Covenant on Civil and Political Rights (‘ICCPR’),2 and shares similarities with the equivalent rights contained in s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’) and s 20 of the Human Rights Act 2004 (ACT). Accordingly, it is useful to the interpretation of s 31 to consider international and domestic jurisprudence on the right, to ensure a consistent interpretation and application is adopted in Queensland. In Victoria, the common law obligation to ensure a fair hearing operates in addition to the Charter. According to the court in Matsoukatidou:3 ‘The obligations imposed by the two rights are so close and overlapping that a court or tribunal is almost always entitled to proceed upon the basis that advice and assistance which satisfies the common law standard will also represent reasonable adjustments and accommodations under the human rights standard and vice versa’.4 Indeed, Victorian courts have found that the statutory right ‘includes or embraces’ the common law rights of unimpeded access to courts,5 a reasonably expeditious hearing,6 and legal advice and representation.7 Interpretation A Competent, Independent and Impartial Court or Tribunal Section 31(1) requires that proceedings be heard by a ‘competent, independent and impartial court or tribunal’. The impartiality of judges has been brought into question when providing assistance to self- represented litigants.8 To maintain impartiality in such cases, arbiters must ensure that the litigant ‘is fully aware of the legal position in relation to the substantive and procedural aspects of the case’, but must stop short of advising them on the particular actions they should take.9
1 Tom Bingham, The Rule of Law (Penguin UK, 2011) 243. 2 International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976) art 14(1) (‘ICCPR’). See also Explanatory Notes, Human Rights Bill 2018 (Qld), 4, 25. 3 Matsoukatidou v Yarra Ranges Council [2017] VSC 161 (‘Matsoukatidou’). 4 Ibid [179]. 5 Brazel v Westin [2013] VSC 527, [21] (‘Brazel’). 6 Kracke v Mental Health Review Board (2009) 29 VAR 1 (‘Kracke’). 7 Slaveski v Smith [2012] VSCA 25, [51] (‘Slaveski’) 8 Tomasevic v Travaglini [2007] VSC 337. 9 Ibid [89].
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A Fair Hearing Equality of Arms The content of a ‘fair hearing’ is not defined in the HRA. However, in contemplation of the equivalent provision in the Victorian Charter, it has been noted that the precise meaning of a ‘fair hearing’ will depend on the nature and circumstances of the proceedings. Justice Forrest characterised the statutory right to a fair hearing in Knight v Wise10 as follows: ‘The right to a fair hearing is concerned with the procedural fairness of a decision. What fairness requires will depend on all the circumstances of the case. Broadly, it ensures a party has a reasonable opportunity to put their case in conditions that do not place them at a substantial disadvantage compared to their opponent. This principle is commonly known as the principle of “equality of arms” [between applicants]’.11 Knight v Wise12 concerned a decision to deny a prisoner an in-cell computer in preparation of their court proceedings. Justice Forrest determined that the lack of access to an in-cell computer amounted only to a ‘mere inconvenience’ and did not place the applicant in a position of substantial disadvantage vis-à-vis the prosecution.13 Accordingly, a ‘breach of the right to a fair hearing requires more than just inconvenience’.14 In Roberts v Harkness,15 the Victorian Court of Appeal suggested that the right’s ‘essential requirement’ of a ‘reasonable opportunity’ to present a case would ‘ordinarily include being informed of the case to be advanced by the opposing party and having an opportunity to respond’.16 The case concerned the decision of a Magistrate to exclude the self-represented defendant from a hearing for ‘persistent refusal to accept the ruling [against an objection to jurisdiction], and disrespectful and disruptive behaviour’.17 The Court of Appeal unanimously held that a fair hearing required: ‘A combination of patience and judgment and an ability to discriminate between those cases where the interests of justice demand a prolongation or adjournment of the hearing — so that the unrepresented litigant’s case can be fairly presented — and those where the interests of justice call for expeditious disposal’.18 Accordingly, the content of a 'fair hearing’ is inherently subject to the circumstances of the case, and the statutory and decision-making framework in which it is decided. Thus, the ‘right’ to an equality of arms between applicants is not absolute. Judicial Duties In Taha,19 the Court of Appeal considered legislation under which a Magistrate had ordered the imprisonment of a person with a disability due to an unpaid fine. The Court construed the legislation as engaging the right to a fair hearing, because the legislative purpose of the Act was to prevent the imprisonment of persons except as a means of last resort.20 Accordingly, ‘just as the content of the requirement to provide an opportunity to be heard is variable, so too is what is necessary for an arbiter to do to discharge the duty to inquire, and will naturally vary from case to case’.21 However, for judicial officers to act compatibly with the right to a fair hearing, they should at a minimum inquire into the personal circumstances of the accused before making an imprisonment order, and should ask ‘if there are any special
10 [2014] VSC 76. 11 Ibid [36]. 12 [2014] VSC 76. 13 Ibid [26]. 14 Ibid [37]. 15 (2018) 57 VR 334. 16 Ibid [48]. 17 Ibid [5]. 18 Ibid [66]. 19 Victorian Police Toll Enforcement v Taha; State of Victoria v Brookes (2013) 49 VR 1, [150] (‘Taha’). 20 Ibid [96]. 21 Ibid [168].
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circumstances relevant to the case’, such as ‘the offender having a mental or intellectual impairment, serious drug addiction or being homeless’.22 Right to Access the Courts The Victorian Courts have readily interpreted the Victorian Charter as incorporating the common law right to unimpeded access to the courts. In Brazel v Westin,23 a case factually similar to Knight v Wise,24 Kaye J distinguished the substantive fairness of the decision from its procedural effect. The primary consideration is ‘whether the action or inaction of the [relevant authority] would preclude the plaintiff from having effective access to the Court’.25 His Honour acknowledged that the circumstances rendered preparation ‘more difficult than it ought to be’, but assessed the facilities to be adequate and the hindrance caused thus not significant enough to constitute a breach of the right. The English Court of Appeal adopted a similar position in Perotti v Collyer-Bristow.26 In Perotti,27 the claimant submitted that the ineffective administration of his uncle’s estate had breached the right to a fair hearing under art 6(1) of the European Convention on Human Rights (‘ECHR’).28 The Court unanimously rejected the claimant’s submissions, stating that: ‘It is not sufficient that the court might feel that the case could be presented better; the question for the court is whether it feels that the case is being, or will be, presented in such a way that it cannot do what it is required to do – that is to say, reach a just decision. If it cannot do that the litigant is effectively deprived of proper access to the courts.’29 The Victorian Supreme Court has relied on the reasoning of international courts. In Slaveski,30 it was stated that, ‘given the similarities between s 24(1) of the [Victorian Charter] and art 6(1) of the [ECHR], we are disposed to construe s 24(1) of the [Victorian Charter] in similar fashion’.31 The same should accordingly apply in Queensland in relation to the application and interpretation of s 31 of the HRA. Public Hearing and Public Availability of Decisions Section 31(1) further requires that hearings are ‘public’. The ‘requirement that justice be administered in public’ derives from the principle of open justice.32 The principle requires that: ‘…the work of the courts is to be performed under public scrutiny, this being a powerful safeguard against the risk of their abusing their power, or departing from the strictest standards of impartiality’.33 However, the requirement of a public and open hearing is not absolute. Section 31(2) empowers a court or tribunal to exclude media or other persons where it is in the ‘public interest or interests of justice’ to do so. For example, the Victorian Coroners Court, in the application of a comparable provision, held that documents pertaining to internal police procedures should not be disclosed in the interests of justice.34 Coate J provided that the discretion to exclude persons or evidence from the court ought to be exercised with the least
22 Ibid. 23 [2013] VSC 527. 24 [2014] VSC 76. 25 Ibid [22]. 26 [2004] 2 All ER 189. 27 Ibid. 28 European Convention on Human Rights, opened for signature 4 November 1953, [1953] ETS 5 (entered into force 3 September 1953). 29 Ibid [31]-[32]. 30 Slaveksi (n 7). 31 Ibid [52]. 32 Deputy Commissioner of Taxation (Cth) v Bourke [2018] VSC 380 [77]. 33 News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, [35]-[36]. See also United Nations Human Rights Committee, General Comment No. 32 Article 14: Right to equality before courts and tribunals and to fair trial, UN Doc CCPR/C/GC/32 (23 August 2007) [28]. 34 Inquest into the death of Tyler Cassidy, Ruling on suppression application by the Chief Commissioner of Police pursuant to section 73(2)(b) of the Coroners Act 2008 (2008) COR 2008 5542.
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infringement to the right as possible, and in a manner that is proportionate to the harm that is sought to be avoided.35 Conciliated Outcomes The Victorian Civil Justice Review expressed some concerns as to the use of judicial review for matters that could otherwise be remedied by alternative dispute resolution. The review notably found that: ‘Public confidence in the administration of justice is not necessarily enhanced by measures which seek to achieve ‘perfect’ justice, if such measures inexorably lead to substantial increases in complexity, cost and delay. This will usually be unacceptable to both individual litigants and the public generally’.36 This observation is consistent with the court’s concerns in Roberts v Harkness,37 regarding the competing demands on the courts’ resources and the importance of striking a balance between ‘the interests of justice of the particular case, with the competing public interest of the efficient use of public resources and access to justice for other litigants waiting to have their cases heard’.38 In circumstances similar to Roberts v Harkness, it may have been appropriate for inexpensive mediation to reduce the ‘tension between the demands of managerial efficiency and [the proper] administration of justice’.39 Mediation may also be appropriate in matters with self-represented litigants to circumvent the complexity and formality of judicial proceedings. In Knight v Wise40 and Brazel v Westin,41 despite the Court’s sympathy to the applicant’s infrequent access to computers, the court could not prove any ‘substantial disadvantage’ had occurred. The legal shortcomings of the case may have had less bearing in mediation.42 It would also have facilitated dialogue between the applicants and the prison authority, which may stimulate reform of internal policies. In discussing the issues, the applicants are less likely to become disenchanted with the administration of justice. Circumstances like Taha43 present an opportunity for the Court to offer more tangible remedies. A conciliation conference may have led to compensation for the psychological harm and time on remand while the administrative mechanics of judicial review were undertaken.44 Compensation and the issuing of an apology may also be appropriate conciliatory remedies in the event of a breach of s 31 of the HRA.
35 Ibid [39]. 36 Victorian Law Reform Commission, Civil Justice Review (Report No 14, March 2008). 37 (2018) 57 VR 334. 38 Ibid [66]. 39 Murray Gleeson, ‘The State of the Judicature’ (Speech delivered at the 13th Commonwealth Law Conference, Melbourne, 17 April 2003). 40 [2014] VSC 76. 41 [2013] VSC 527. 42 Mary Anne Noone and Lola Akin Ojelabi, ‘Ensuring access to Justice in Mediation within the Civil Justice System’ [2014] Monash University Law Review 22. 43 Taha (n 19), [150]. 44 Alan Robertson SC, ‘Administrative Law Remedies: Some discretionary considerations’ (2002) 22 Australian Bar Review 119.
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Section 32(2)(i): Right to an Interpreter
Tomea Ryan
’32 Rights in criminal proceedings
(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-
…
(i) to have the free assistance of an interpreter if the person can not understand or speak English.’
Section 32(2)(i) of the Human Rights Act 2019 (Qld) (‘HRA’) affords ‘the free assistance of an interpreter if a person can not understand or speak English’. This provision is domestically reflected in s 25(2)(i) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’) and s 22(2)(h) of the Human Rights Act 2004 (ACT) (‘ACT HRA’). In Queensland, there is no common law right to the assistance of an interpreter.1 However, a court does have the power in criminal cases to order that the State provide an interpreter pursuant to s 131A of the Evidence Act 1997 (Qld) if the court is satisfied that it is in the interests of justice to do so. This right is modelled on art 14(3)(f) of the International Covenant on Civil and Political Rights (‘ICCPR’),2 and is contained in other international agreements.3 The European Court of Human Rights (‘ECtHR’) has also considered infringements on the right to an interpreter on numerous occasions.4 As no examples exist yet in Queensland as to the operation of s 32(2)(i), international and domestic law will be important in guiding interpretation of the right.5 In addition, the rights contained in s 32 of the HRA are ‘complementary’6 or ‘inseparable’7 to the rights in s 31 of the HRA, which protects the right to a fair hearing. In Dietrich v The Queen,8 Gaudron J noted that for a trial to be fair there may be a requirement ‘to allow evidence to be given through an interpreter’.9 This was affirmed in Re East; Ex parte Nguyen,10 where Kirby J commented that a trial would be unfair because of the lack of an interpreter, going so far as to prescribe a ‘duty on the judicial officer to ensure that an interpreter is provided’.11 In Ebatarinja v Deland,12 the High Court commented that where an accused ‘does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair
1 Supreme and District Courts Benchbook, Interpreters and Translators (No. 21.1, March 2017) 1. 2 International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’); Explanatory Notes, Human Rights Bill 2018 (Qld) 26. 3 United Nations Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) art 5(c); European Covenant for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) article 6(e). 4 See, eg, Isop v Austria (European Court of Human Rights, Chamber, Application No. 808/60); Oztürk v The Federal Republic of Germany (European Court of Human Rights, Chamber, Application No. 8544/79); Luedicke, Belkacem and Koc (European Court of Human Rights, Chamber, Application No. 6210/73, 6877/75 and 7132/75) (‘Luedicke, Belkacem and Koc’); Kamasinski v Austria (1991)13 Eur Court HR 36 (‘Kamasinski’); Brozicek v Italy (European Court of Human Rights, Chamber, Application No. 10964/84) (‘Brozicek’); Cuscani v The United Kingdom (European Court of Human Rights, Chamber, Application No. 32771/96) (‘Cuscani’); Jecius v Lithuania (2002) 35 Eur Court HR 16; Lagerblom v Sweden (European Court of Human Rights, Chamber, Application No. 26891/95); Lutz v Germany (1987) 10 Eur Court HR 182; Fox, Campbell and Hartley v The United Kingdom (European Court of Human Rights, Chamber, Application No. 12244/86, 12245/86 and 12383/86); Conka v Belgium (European Court of Human Rights, Chamber, Application No. 51564/99); Skalka v Poland (European Court of Human Rights, Chamber, Application No. 43425/98). 5 Human Rights Act 2019 (Qld) s 48(3) (‘HRA’). 6 ‘Rights in Criminal Proceedings’ Queensland Human Rights Commission (Web Page, July 2019) 1-4 < https://www.qhrc.qld.gov.au/your-rights/human-rights-law/rights-in-criminal-proceedings>. 7 Evert-Jan der Vlis, ‘The Right to Interpretation and Translation in Criminal Proceedings’ (2010) 14 Journal of Specialised Translation 35, 35. 8 (1992) 177 CLR 292. 9 Ibid 363. 10 (1998) 196 CLR 354. 11 Ibid 390. 12 (1998) 194 CLR 444.
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trial’.13 The Australian Law Reform Commission has also stated that the provision of an interpreter ‘is necessary to put a non-English-speaking defendant in the same position as an English-speaking one’.14 Interpretation Charged with a Criminal Offence Under the HRA, the right to the free assistance of an interpreter is provided to persons ‘charged with a criminal offence’.15 For the purposes of the Victorian Charter, a person is charged if ‘served with a summons to answer the charges laid or, if no summons has been issued, when he or she has been served with an arrest warrant’.16 In interpreting the ACT HRA, the ACT Court of Appeal adopted the view that a person is charged with a criminal offence ‘from the time the person is notified, by means of an official authorisation, that he or she is to be tried for allegedly criminal conduct’.17 This is consistent with the approach taken by the United Nations Human Rights Committee (‘HRC’), in the United Kingdom as well as in New Zealand.18 It is likely that a similar interpretation will be adopted in Queensland. In this vein, the right to an interpreter encompasses assistance at both pre-trial and post-trial stages. The argument that the right did not extend to pre-trial proceedings was rejected in an early case brought before the ECtHR - Luedicke, Belkacem and Koc.19 More recently, the ECtHR has affirmed an infringement of the right where an interpreter was requested and subsequently refused during the first stages in questioning a suspect after arrest.20 Here, a parallel was drawn with the right to a lawyer in police interviews, as had been established in Salduz v Turkey.21 In Gibson v Western Australia,22 the interpretive services were also required when counsel was taking instructions from the accused.23 A Minimum Guarantee The rights under s 32(2) of the HRA provide a ‘minimum guarantee’ for persons charged with a criminal offence.24 At common law, it is requisite that the accused is ‘present’ in a criminal proceeding, not just ‘physically present but also able to understand the proceedings and the nature of the evidence against him [sic]’.25 If the accused does not understand and speak the language in which the proceeding is conducted, in the absence of a competent interpreter, the trial will not be considered fair.26 In interpreting the comparable ECHR provision, the test is also whether ‘enough [has been] done to allow the accused fully to understand and answer the case against him’.27 In other words, the accused needs to be able to participate effectively in the proceeding. This gratuity does not extend to the right of the accused to insist that the language of the court be conducted in their first language or that the interpretive services allow them to conduct their defence in another language that is not English.28 As it is the right to the ‘free assistance’ of an interpreter, an accused must not be ordered to a pay for the assistance. In Luedicke, Belkacem and Koc,29 it was concluded that the meaning of ‘free’ encumbered the
13 Ibid 454. 14 Australian Law Reform Commission, Multiculturalism and the Law (Report No 57, April 1992) 3.33. 15 HRA (n 5) s 32. 16 Baker (a pseudonym) v DPP (Vic) [2017] VSCA58, [85]. 17 Nona v The Queen (2013) 8ACTLR 168, [83]. 18 Judicial College of Victoria, Charter of Human Rights Bench Book (2010) < http://www.judicialcollege.vic.edu.au/eManuals/CHRBB/index.htm> [24.60]. 19 Luedicke, Belkacem and Koc (n 4). 20 Diallo v Sweden (European Court of Human Rights, Chamber, Application No. 13205/07). 21 Salduz v Turkey [2007] Eur Court HR 332. 22 Gibson v Western Australia [2017] WASCA 141. 23 Ibid. 24 Human Right Act 2019 (Qld) s 32(2). 25 Ebatarinja v Deland (n 12) 454. 26 Kunnath v The State [1993] 1 WLR 1315; Ebatarinja v Deland (n 12); R v Johnson (1987) 25 A Crim R 433; R v Saraya (1993) 70 A Crim R 515; R v Yasso [2007] VSCA 306. 27 Kamasinski (n 4) [74]. 28 D v France (European Court of Human Rights, Chamber, Application No. 10210/82); Bideault v France (European Court of Human Rights, Chamber, Application No. 11261/84). 29 Luedicke, Belkacem and Koc (n 4).
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‘once and for all exemption or exoneration’ of payment for interpretive services.30 Any contrary interpretation to the meaning of ‘free’ would have been inconsistent with the object and purpose of ensuring a fair trial for the accused person. This reflects the notion that the accused may forgo their right to an interpreter for fear of financial consequence if the interpreter is not provided free of charge.31 Qualifications or Quality of the Interpreter Under the Victorian Charter, an ‘interpreter’ must be ‘an accredited interpreter or, if such a person is not available, a competent interpreter’.32 The body prescribed to accredit interpreters in Victoria is the National Accreditation Authority for Translators and Interpreters Ltd (‘NAATI’).33 As NAATI accreditation is the only officially accepted qualification for translators and interpreters in Australia, this standard is likely to also be used in Queensland for the purposes of the HRA.34 The ECtHR has instead focused its concern on the ‘quality of the translation itself, rather than the qualification of an interpreter’.35 In Kamasinski v Austria,36 sufficient interpretation was provided, not by a registered interpreter but instead someone who regularly assisted police during interviews when no registered interpreter was available.37 So long as the interpretation provided by the interpreter did not affect the accused’s right to a fair trial, the interpretation was deemed acceptable.38 It would perhaps be difficult for the court to impose particular formalities and insist on sworn, certified or registered interpreters in every case and at every stage of a proceedings.39 The jurisprudence of the HRC also implicitly imposes an affirmative obligation on the accused to raise the issue of the interpreter’s competence.40 On the other hand, it is for the trial judge of a domestic court to determine whether the free assistance of an interpreter is sufficiently provided.41 The precise stringency of the test and the burden of proof that Queensland decision-makers will adopt is unclear, but it seems likely that it will be the responsibility of the public entity to determine whether an interpreter should have been provided (similar to the reasoning of the ECtHR). Translation of Documents The HRC has construed the right to the free assistance of an interpreter as including a right to have all ‘relevant’ documents translated free of charge.42 The ECtHR has further qualified this construction by holding that only documents that are ‘necessary for the defendant to have knowledge of the case and defend himself’ need to be translated.43 While this is true, the written translation of documents is unnecessary if sufficient oral information as to its contents has already been provided.44 The Council of the European Union, in its October 2010 Directive, required that only ‘essential documents’ be translated for the purposes of the right to the free assistance of an interpreter.45 These ‘essential documents’ included: ‘detention orders, charges or indictments and the judgment, together with any other
30 Ibid [40]; Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331. 31 Luedicke, Belkacem and Koc (n 4). 32 Charter of Human Rights and Responsibilities 2006 (Vic) s 3. 33Charter of Human Rights and Responsibilities (General) Regulation 2017 (Vic) s 5. 34 Supreme and District Courts Benchbook (n 1) 1. 35 Lijiang Zhu, ‘Human Rights Protection of the Vulnerable in an Age of Globalisation: The Right of Ethnic Minorities to Free Interpretation in Criminal Proceedings under International Law: with Special Reference to China’ (2010) 3 Journal of East Asia and International Law 307, 317. 36 Kamasinski (n 4). 37 Ibid. 38 Ibid. 39 Stefan Trechsel, Human Rights in Criminal Proceedings (Oxford University Press, 2006) 339. 40 Griffin v Spain UN Doc CCPR/C/53/D/493/1992 [9.5]. 41 Brozicek v Italy (n 4) [41]; Cuscani v The United Kingdom (n 4). 42 Harward v Norway, UN Doc CCPR/C/51/D/451/1991. 43 Kamasinski (n 4) [74]. 44 Hermi v Italy (European Court of Human Rights, Chamber, Application No. 18114/02) (‘Hermi’); Kamasinski (n 4). 45 Directive 2010/64/EU of the European Parliament and of the Council on the Right to Interpretation and Translation in Criminal Proceedings [2010] OJ L 280/1, art 3.
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documents regarded by authorities as essential’.46 The ECtHR, in addition to reiterating the above point, further reaffirmed the elements which must be taken into consideration when determining the extent of translation that is required. The ECtHR held that: ‘…there must be an examination of the nature of the offence with which the defendant is charged and any communications addressed to him by the domestic authorities in order to assess whether [the documents] are sufficiently complex to require a detailed knowledge of the language used in court’.47 Difficulty has been found in showing that the defence was hindered by the fact that one or several documents were not translated and the extent to which this was the case.48 For this reason, no cases have successfully been brought before the ECtHR on this basis. Conciliated Outcomes A person may make a complaint to the Queensland Human Rights Commission (‘QHRC’) for a breach of s 32(2)(i) by a public entity.49 The QHRC will attempt to resolve the complaint by holding a conciliation conference so that an agreement between the two parties can be reached.50 As noted in the Attorney- General’s Explanatory Speech, the conciliation process aims to be ‘accessible’;51 in allowing for a ‘swift resolution’ through ‘informal, quick and efficient’ procedures.52 Such a process is ‘essential’ in developing a ‘human rights culture’ and is thought to ‘complement’ and promote dialogue on human rights between the arms of government as well as the community.53 It also avoids the onerous and costly process of legal proceedings. Conciliation allows for a multitude of outcomes, as anything agreed by the parties is possible.54 The issue of proportionality is a key consideration in providing the most appropriate conciliation outcome for the parties. As the right to an interpreter extends to both pre-trial and post-trial proceedings, the public entity may be the Department of Public Prosecutions or a representative of the Queensland Police Service. Consequently, at conciliation, the public entity may assign an interpreter to the complainant or, alternatively, a public apology may be sought by the complainant to acknowledge the public entities’ breach of the right to the free assistance of an interpreter. This would hold the public entity accountable in a public or private forum.55 In doing so, the public entity may acknowledge or accept responsibility for the infringement or provide compensation where a breach has resulted in adverse consequences (such as a wrongful conviction). An explanation may also be provided by the public entity to the complainant where, as a result of the breach, the complainant was unable to properly participate in their criminal proceeding or understand the case against them. Courts and tribunals have also found difficulty in assessing the damage caused by incompetent translators. As limited cases have successfully been brought before domestic or international courts in relation to the insufficient quality or qualification of an interpreter, conciliation may be a more appropriate forum for advancing such claims. This could even extend to instances where language service providers, such as NAATI, have contracted with non-accredited interpreters to provide incompetent interpretive services.
46 Ibid. 47 Hermi (n 43) [71]. 48 Trechsel (n 38) 338. 49 Human Right Act 2019 (Qld) s 67. 50 Ibid s 79. 51 Queensland, Parliamentary Debates, Legislative Assembly, 31 October 2018, 3186 (Yvette D’Ath, Attorney-General). 52 Tamara Walsh and Bridget Burton, ‘Queensland’s new right to education: What does it mean for children with disabilities?’ (2020) 45(1) Alternative Law Journal 18, 23; HRA (n 5) s 80. 53 Louis Schetzer, ‘Queensland’s Human Rights Act: Perhaps not such a great step forward?’ (2020) 45(1) Alternative Law Journal 12, 16. 54 ‘All About Conciliation’ Queensland Human Rights Commission (Web Page, December 2019) 1-4 < https://www.qhrc.qld.gov.au/complaints/all-about-conciliation>. 55 Ibid.
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As a result, a more qualified interpreter may be provided to the complainant or the public entity may review the quality of the interpretation already provided and address deficiencies in the translation if needed.56 Conciliation could also be used to rectify policy concerns in the use of qualified interpreters in court rooms as well as pre-trial and post-trial settings. It could also establish clear guidelines or procedures for providing translators in criminal matters. In Queensland, this is particularly important in order to address the need for Aboriginal Interpreting Services (‘AIS’) to expand and cover more Indigenous languages and provide greater ‘culturally appropriate services’ to Indigenous Australians in court.57
56 ‘Conciliation Register’ Australian Human Rights Commission (Web Page, 2020) < https://www.humanrights.gov.au/complaints/conciliation- register/list?field_discrimination_type_value=All&field_grounds_value=All&field_areas_value=All&field_date_value=All&keys=interpr eter>. 57 New South Wales Young Lawyers Human Rights Committee, Submission No 28 to the Senate Legal and Constitutional Affairs Committee, Inquiry into Access to Justice (5 May 2009) 21.
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Section 33: Rights of Children in the Criminal Process
Emily Hulme and Ritvik Ravi
‘33 Children in the criminal process
(1) An accused child who is detained, or a child detained without charge, must be segregated from all detained adults.
(2) An accused child must be brought to trial as quickly as possible.
(3) A child who has been convicted of an offence must be treated in a way that is appropriate for the child’s age.’
With the commencement of the Human Rights Act 2019 (Qld) (‘HRA’), Queensland has joined Victoria and the ACT in legislatively safeguarding fundamental human rights as drawn from international law.1 Among these rights exists a trio of obligations, embedded in s 33 of the HRA, relating to the treatment of children in the criminal process. First, an accused child who is detained, or a child detained without charge, must be segregated from all detained adults;2 secondly, an accused child must be brought to trial as quickly as possible;3 and thirdly, a child who has been convicted of an offence must be treated in a way that is appropriate for the child’s age.4 This provision is identical to s 23 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’) and is similar to but narrower in scope than s 20 of the Human Rights Act 2004 (ACT). These provisions exist in recognition of the inherent vulnerability of children in the criminal process. Interpretation Scope In 2016, the age at which a person can be charged as an adult in Queensland was changed from 17 to 18 years old.5 This amendment brings Queensland’s legal definition of a ‘child’ into alignment with art 1 of the United Nations Convention on the Rights of a Child (‘UNCROC’).6 Consequently, all children under the age of 18 in Queensland are to be afforded the rights contained in s 33 of the HRA. Segregation Children who are imprisoned with adults are at higher risk of violent victimisation, exposure to illicit substances and escalating criminality.7 Further, children have greater needs than those of adult offenders.8 Thus, the segregation of children from detained adults stipulated under s 33(1) protects the child’s basic safety and wellbeing.9 Interestingly, Australia has expressed reservation about the international equivalent of s 33(1), art 37(c) of the UNCROC.10 Australia’s ratification of the UNCROC was prefaced by the assertion that the obligation to separate children from adults in prison is accepted only to the extent that it is feasible
1 The Department of the Premier and Cabinet, Human Rights (1 July 2019) Queensland Government
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and consistent with the obligation that children maintain contact with their families.11 Consequently, it is the Commonwealth’s position that a child’s detention within an adult facility may be justified where it is within the child’s best interests to prioritise family contact.12 Such cases would invoke the Court’s parens patriae jurisdiction, where the overriding consideration is the ‘best interests of the child’.13 Accordingly, when adjudicating under s 33(1) of the HRA, Queensland decision-makers should weigh the dangers of a child’s exposure to an adult prison against that child’s best interests, based on the factual circumstances at hand. If, on the Court’s determination, a public body places a child within an adult prison without proper consideration of the child’s best interests, that body will breach s 33(1) and their obligation to make decisions compatible with human rights under s 58 of the Act. Trial Section 33(2) of the HRA, art 40(2)(b)(iii) of the UNCROC and art 10(2)(b) of the ICCPR14 each recognise an accused child’s right to be brought to trial as quickly as possible. This obligation is more onerous than the general standard of bringing an accused to trial ‘without unreasonable delay’,15 given the greater criminological and psychological consequences of imprisoning children.16 Consequently, Queensland decision-makers must determine what constitutes ‘reasonable’ delay for the purposes of s 33(2). In Philis v Greece (No 2), the European Court of Human Rights asserted that reasonableness of delay must be assessed in light of the particular circumstances of the case, including its complexity.17 This test was cited in Perovic v CW where, while adjudicating on the ACT’s equivalent provision,18 the Court held that an unjustifiable delay of 16 months between the offence and prosecution resulted in injustice for the accused child.19 Moreover, the ACT Supreme Court has described the obligation to act ‘as quickly as possible’ as an obligation to give priority to the child’s case and take positive steps towards its expeditious completion.20 The European Court of Human Rights has accordingly held that ‘reasonable time’ begins to run as soon as the accused is charged.21 In contrast, ACT courts have held that the omission of the term ‘accused’ from the description of child in s 20(3) of the Human Rights Act 2004 (ACT) indicates an intention for time to begin to run as soon as the child is subject to police investigation.22 Given that s 33(2) specifically refers to ‘accused’ children, meaning children who have been charged, the Queensland decision-makers should find the European position more persuasive. Treatment Children in the criminal process are likely to be known to child safety services, have taken drugs, experienced domestic violence, be disengaged from their family, and not attend school regularly.23 Consequently, children who have been convicted are extremely vulnerable and must be treated in an age- appropriate manner, as stipulated by s 33(3) of the Act and art 37(c) of the UNCROC. Queensland decision- makers must subjectively assess what the ‘appropriate’ treatment of a child is based on their age and the individual circumstances. To assist, the court may refer to the United Nations Rules for the Protection of
11 United Nations Treaty Collection, Convention on the Rights of the Child (6 September 2019) < https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en>. 12 Human Rights & Discrimination Commissioner, ACT Human Rights Commission, Rights of Children in the Criminal Process (s 20) < https://hrc.act.gov.au/wp-content/uploads/2015/03/Section-20-Rights-of-children-in-the-criminal-process.pdf>. 13 State of Queensland v Nolan [2002] 1 Qd R 454, 455. 14 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, (entered into force 23 March 1976) art 10(2)(b (‘ICCPR’). 15 LM v Childrens Court of the Australian Capital Territory and the Director of Public Prosecutions for the Australian Capital Territory [2014] ACTSC 3, at [54]. 16 Human Rights & Discrimination Commissioner (n 12). 17 (1998) Eur Court HR 417, [35]. 18 Human Rights Act 2004 (ACT), s 20(3). 19 Perovic v CW (Unreported, ACT Childrens Court, Magistrate Somes, 1 June 2006) (‘Perovic’). 20 LM v ACT Childrens Court (n 15) [54]. 21 Eckle v Germany (1982) 5 Eur Court HR 1, [73]. 22 Perovic (n 19). 23 Tamara Walsh, ‘From child protection to youth justice: Legal responses to the plight of “cross-over kids”’ (2019) 46(1) University of Western Australia Law Review 90.
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Juveniles Deprived of their Liberty.24 These standards stipulate an extensive list of rules relating to the treatment of child offenders, including that children in detention shall: • Have access to education or vocational training in preparation for reintegration into the community, and where possible, this education or training should take place in community facilities;25 • Engage in daily recreational activities;26 • Receive adequate medical care to detect and treat any physical or mental illness that may hinder their rehabilitation;27 • Be administered medicine only for necessary medical treatment;28 • Have adequate communication with the outside world and the right to receive frequent visits;29 and • Never be placed in solitary confinement or subject to punishment that may compromise their mental or physical health.30 Considering these standards, an example of neglecting to appreciate the age and needs of children is found in Certain Children and Certain Children (No 2),31 which involved the establishment of a youth justice centre at Barwon adult prison. Evidence was given that the children were placed in isolated lockdown for hours, given medication without consent, did not have adequate access to educational and recreational facilities, and that limitations were placed on their developmental needs.32 The Victorian Supreme Court ruled that the youth detention centre was incompatible with international and domestic human rights law. Although the plaintiffs in Certain Children were detained on remand and had not yet been convicted, the case demonstrates how Queensland decision-makers should oversee the treatment of children in the criminal justice system when their human rights are violated.33 Conciliated Outcomes Section 33 of the HRA could be engaged by: activities which affect the speed at which a child may be brought to trial; the detention of children in unsuitable facilities; or improper alteration of youth prison programs.34 In such cases, a child making a complaint to the Queensland Human Rights Commission might choose to resolve the matter via conciliation. Depending on the case, a range of conciliated outcomes may be appropriate to informally and efficiently settle the matter,35 and assist in remedying the harm caused by a breach of this section. One of the most commonly desired conciliated outcomes is an apology made by the respondent to acknowledge the hurt and distress caused to the complainant. Apologies can be public or private, based on the preference of the complainant. In cases involving a breach of s 33, the respondent is likely to be a large public body such as a correctional facility, or the Department of Public Prosecutions. Consequently, a public apology would involve acknowledgement of the actions leading to a breach of the child’s human rights, and holding the respondent to account in a public forum. Similarly, the complainant may seek a statement of
24 United Nations Rules for the Protection of Juveniles Deprived of their Liberty (14 December 1990). 25 Ibid Part IV E 38-42. 26 Ibid Part IV F 47. 27 Ibid Part IV H 49-51. 28 Ibid Part IV H 55. 29 Ibid Part IV J 59-61. 30 Ibid Part IV L 67. 31 Certain Children by Their Litigation Guardian v Minister for Families and Children & Ors [2016] VSC 796 (‘Certain Children’); Certain Children v Minister for Families and Children & Ors (No 2) [2017] VSC 251 (‘Certain Children (No 2)’). 32 Certain Children (n 32) [65]-[95]. 33 Certain Children (n 32) [155]; Certain Children (No 2) (n 32) [229]. 34 Human Rights & Discrimination Commissioner (n 12). 35 HRA (n 2) s 80.
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regret, which involves the public entity expressing remorse for their actions and for causing distress or harm to the complaint.36 Complainants may pursue conciliation with the objective of altering the conditions of their detention in a way that properly accommodates their age. For example, in Certain Children, the plaintiffs sought an outcome that prevented their transfer to an adult facility.37 Similarly, in DPP v S L the respondent sought to be separated from adults whilst they were in remand awaiting court hearings.38 The complainant may also seek physical modifications to a youth detention facility, or for modifications to be made to educational and vocational programs offered. This conciliated outcome may be more appropriate where substantive change to procedures or environments is warranted to bring the conduct of the public entity into alignment with their obligations under s 33. The complainant could seek an undertaking from the authority to make any changes to internal policy necessary, to accommodate the human rights afforded to children in the criminal process. Compensation may be appropriate where the conduct of the public authority has caused significant hurt and distress,39 such as in Brough v Australia, where the UN Human Rights Committee awarded compensation after the plaintiff had been unlawfully held in solitary confinement.40 Importantly, conciliation may not be sufficient in instances where the child’s human rights have been violated by conduct that is abusive or violent, or where the hurt and distress caused to the child is too significant and has a lasting impact.
36 Australian Human Rights Commission, Understanding and Preparing for Conciliation – Unlawful Discrimination (14 December 2012) < https://www.humanrights.gov.au/complaints/complaint-guides/understanding-and-preparing-conciliation-unlawful-discrimination>. 37 Certain Children (No 2) (n 32) [7]-[8]. 38 DPP v S L [2016] VSC 714. 39 Australian Human Rights Commission, Conciliation Register < https://www.humanrights.gov.au/complaints/conciliation- register/list?field_discrimination_type_value=All&field_grounds_value=All&field_areas_value=All&field_date_value=All&keys=&page =0>. 40 UN Human Rights Committee, Views: Communication No 1184/2003, 86th sess, UN Doc CCPR/C/86/D/1184/2003 (17 March 2006) (‘Brough v Australia’).
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Section 34: Right Not to Be Tried or Punished More Than Once
Harriet Lomas
’34 Right not to be tried or punished more than once
A person must not be tried or punished more than once for an offence in relation to which the person has already been finally convicted or acquitted in accordance with law.’
Section 34 of the Human Rights Act 2019 (Qld) (‘HRA’) provides that ‘a person must not be tried or punished more than once for an offence in relation to which the person has already been finally convicted or acquitted in accordance with law’. Section 34 coheres generally with s 26 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’) and s 24 of the Human Rights Act 2004 (ACT) (‘ACT HRA’).1 This right derives from art 14(7) of the International Covenant on Civil and Political Rights.2 Section 34 also reflects the historic common law ‘double jeopardy’ principle, that a person cannot be placed in jeopardy more than once for the same, or substantially the same offence.3 Indeed, in Momcilovic v The Queen,4 French CJ noted that certain Victorian Charter rights ‘incorporate or enhance rights and freedoms at common law’.5 The double jeopardy principle is justified on the ground that ‘the State with all its resources and power should not be allowed to make repeated attempts to convict an individual’.6 If re-litigation is vexatious or oppressive and amounts to an abuse of process, a court may order a stay of proceedings.7 Additionally, in Queensland, s 17 of the Criminal Code largely reflects the common law pleas of autrefois convict and autrefois acquit by providing a statutory defence8 ‘to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted’.9 Similarly, s 16 of the Criminal Code protects a person from being ‘twice punished… for the same act or omission’.10 While no examples exist yet in Queensland as to the interpretation and operation of s 34, common law and domestic and international jurisprudence relating to comparable provisions may inform judicial interpretation of s 34.11 Interpretation Application Only in Respect of Criminal Offences The Explanatory Notes to the HRA provide that s 34 only applies to criminal offences.12 As such, sanctions and penalties imposed by professional disciplinary bodies which do not constitute criminal
1 See also New Zealand Bill of Rights Act 1990 (NZ) s 26(2) (‘NZ BORA’); Canada Act 1982 (UK) c 11, sch B pt I, s 11(h) (‘Canadian Charter’). 2 International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’); Explanatory Notes, Human Rights Bill 2018 (Qld) 5 (‘Explanatory Notes’). See also, Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), as amended by Protocol 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 22 November 1984, CETS No 117 (entered into force 1 November 1988) art 4 (‘ECHR’). 3 See eg, R v Carroll (2002) 213 CLR 635, 660 [84] (Gummow and Gaudron JJ), 673 [130] (McHugh J) (‘Carroll’). 4 (2011) 245 CLR 1. 5 Momcilovic v The Queen (2011) 245 CLR 1, 50 [51] (French CJ). 6 Pearce v The Queen (1998) 194 CLR 610, 614 [10] (McHugh, Hayne and Callinan JJ), citing Green v United States (1957) 355 US 184,187-8 (Black J). See also Carroll (n 3) 643 [21] (Gleeson CJ and Hayne J). 7 Judicial College of Victoria, Charter of Human Rights Bench Book (2010)
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offences would not breach s 34,13 nor would civil proceedings based on the same facts as a prior criminal prosecution.14 Section 34 encompasses circumstances where an accused is charged with two criminal offences resulting from the same facts.15 This reflects the interpretation of analogous domestic and international provisions, including art 14 of the ICCPR.16 Furthermore, other non-penal consequences flowing from the conduct which led to the conviction or punishment may not breach s 34, and s 34 will unlikely be engaged where the act constitutes two offences and thus two penal consequences flow from it.17 Given that s 34 refers to both trials and punishment for an offence, the provision’s purview of application may be broader than ss 31 (right to a fair hearing) and 32 (rights in criminal proceedings) of the HRA which refer to ‘criminal offence’.18 Thus, s 34 may also apply to proceedings which are criminal in substance.19 In Canada, non-criminal proceedings that result in ‘true penal consequences’ attract the protection of the comparable provision in the Canadian Charter of Rights and Freedoms (s 11(h)) (the ‘Canadian Charter’).20 Canadian jurisprudence defines a ‘true penal consequence’ as a custodial sentence or fine ‘which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than maintenance of internal discipline within the limited sphere of activity’.21 Final Conviction or Acquittal Section 34 only applies where a court has finally acquitted or convicted a person. The person must have exhausted all appeal rights, or time limits for invoking appeals must have passed.22 This presupposes that the matter is res judicata.23 Furthermore, the right will not be engaged by judicial review proceedings and circumstances where a higher court orders a retrial following a quashed conviction.24 Section 34 does not prevent reopening cases if an appeal court finds a miscarriage of justice has occurred.25 Under the comparable ICCPR and ECHR provisions, a mistrial resulting upon a hung jury does not prevent reopening proceedings.26 Similarly, ‘the discontinuance of criminal proceedings by a public prosecutor’ did not amount to a final conviction or acquittal under the ECHR.27 Limitations Whilst the principle extends to bar prosecution appeals from an acquittal at common law, this is subject to unequivocal statutory exceptions.28 In 2007, Queensland Parliament amended the Criminal Code Act 1899 (Qld) (‘Criminal Code’), inserting two such exceptions to the double jeopardy principle.29 First, a person may be retried for murder where fresh and compelling evidence exists;30 and second, a person be retried for a 25
13 Right Not to be Tried or Punished More than Once’, Queensland Human Rights Commission (Web Page, July 2019) 2
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year offence if the acquittal was tainted.31 Retrials pursuant to these exceptions may not constitute s 34 violations if the exceptions are deemed reasonable and demonstrable limits on a human right.32 When comparable double jeopardy exceptions were tabled in Victoria,33 the Statement of Compatibility to the relevant Bill noted that the limitations on the analogous right were demonstrably justified as they helped foster goals such as ‘promoting community safety, fair hearings and just outcomes, the interests of victims of crime and public confidence in the criminal justice system’.34 It is likely that the Criminal Code exceptions would be similarly justified limitations on s 34. Examples of Operation of the Right Disciplinary Proceedings As canvassed above, it is unlikely that disciplinary proceedings and consequential sanctions imposed by professional bodies would constitute ‘punishment’ under s 34. The purpose of such proceedings is to ‘protect the public, not punish the practitioner’.35 For example, in Psychology Board of Australia v Ildiri,36 VCAT found that disciplinary proceedings against a registered psychologist did not engage the analogous Victorian Charter provision in circumstances where the respondent had been criminally convicted on the same facts. Furthermore, it is unlikely that disciplinary proceedings against prison detainees will engage s 34.37 In R v Schubley,38 the Supreme Court of Canada held that prison disciplinary proceedings sought to maintain order within prisons, not mete out punishment.39 The Court noted that such provisions were not caught by s 11(h) of the Canadian Charter as the proceedings lacked the essential characteristics of a public, criminal offence and the applicant did not have to answer to the State a second time. Similarly, the refusal to grant applications for accreditations or licenses, or revocation of licenses does not amount to double punishment.40 For example, in Swain v Department of Infrastructure,41 Counsel for the applicant submitted that the refusal to grant a commercial driver accreditation constituted double punishment as it was motivated by the applicant’s past misconduct. In rejecting the submission, the Tribunal found that the comparable Victorian Charter provision was not engaged, noting that protection of the public, not punishment of the individual is at ‘the forefront of occupational licensing decision making’.42 Post-Sentence Detention and Supervision The Queensland Human Rights Commission (‘QHRC’) notes that s 34 may be relevant to ‘laws, policies, acts or decisions that allow continued incarceration of people following completion of sentence’.43 In Fardon v Attorney-General (Qld),44 the High Court found that the making of a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘DPSOA’)after the expiry of an imprisonment term did not infringe the double jeopardy rule.45 As such, it is unlikely that post-sentence detention and supervision would violate s 34. However, Mr Fardon subsequently complained to the United Nations Human Rights Commission (‘HRC’) that his continued imprisonment under the DPSOA violated art
31 Criminal Code (n 9) ss 678C, 678E (definition of ‘tainted acquittal’). 32 See HRA (n 11) s 13. 33 See Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic); Criminal Procedure Act 2009 (Vic) ss 327H, 327L-N. 34 Victoria, Parliamentary Debates, Assembly, 9 November 2011, 5349 (Robert Clark, Attorney-General). 35 Psychology Board of Australia v Ildiri [2011] VCAT 1036, [34], citing Ha v Pharmacy Board of Australia [2002] VSC 322, [90]-[94] and Clyne v New South Wales Bar Association (1960) 104 CLR 186, 201. 36 [2011] VCAT 1036. 37 See, eg, R v Schubley [1990] 1 SCR 3 (‘R v Schubley’); Campbell and Fell v United Kingdom [1984] ECHR 8. 38 [1990] 1 SCR 3. 39 R v Schubley (n 37) 8. 40 See, eg, Harder v Director of Land Transport Safety (1998) 5 HRNZ 343; R v Wigglesworth (n 20); Swain v Department of Infrastructure (General) [2008] VCAT 848 (‘Swain’); Sim v Business Licensing Authority (Occupational and Business Regulation) [2011] VCAT 583. 41 [2008] VCAT 848. 42 Swain (n 40) [24], citing Inglese v Estate Agents Board and Anor (Supreme Court of Victoria, Murphy J, 15 August 1988). 43 QHRC Web Page (n 13) 1-2. 44 (2004) 223 CLR 575 (‘Fardon’). 45 Ibid 610 [74] (Gummow J).
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14(7) of the ICCPR. While the HRC found it was unnecessary to answer this question to resolve the dispute,46 academic commentary purports to accept that preventative detention imposed on convicted sex offenders at the expiration of their sentence may violate art 14(7).47 In Victoria, the Statement of Compatibility to the Serious Sexual Offenders (Detention and Supervision) Act 2009 (Vic), which permits continuing detention orders, explains that the statute does not engage the right to be protected from double jeopardy as it is a civil scheme effecting ‘prevention, protection and rehabilitation, rather than punishment’.48 Conversely, the New Zealand Court of Appeal has found that legislation imposing extended supervision orders upon convicted sex offenders upon the trigger of a criminal conviction ‘amounts to punishment’ for the purposes of the New Zealand Bill of Rights Act 1990.49 It was expected that the HRC opinion would provide guidance as to the application of provisions such as s 34 to preventative detention schemes,50 however in order for Queensland courts to consider such schemes as violating s 34, Fardon would need to be distinguished. De Novo Hearings and Review In DPP v Bryar,51 the Supreme Court of Victoria considered whether s 16K of the Magistrates’ Court Act 1958 (Vic) breached the comparable Victorian Charter provision. Section 16K permits a Magistrate to direct that a determination made by a judicial registrar be reviewed by a Magistrate. The Court concluded that the provision did not breach the comparable Victorian Charter provision, noting that the principle of double jeopardy does not permit s 16K to be construed inconsistently with the ‘grammatical meaning and apparent purpose’52 of the section, which is ‘to enable a police informant to seek review by way of hearing de novo to a magistrate from the decision of a judicial registrar’.53 Parole Eligibility Administrative decisions or legislation modifying an offender’s eligibility for parole may breach s 34. For example, in Canada (Attorney General) v Whaling,54 legislative amendments which retrospectively abolished early parole dates for offenders currently serving sentences were held to ‘categorically thwart the expectation of liberty of an offender who has already been sentenced’.55 The legislation was held to be ‘one of the clearest of cases of a retrospective change that constitutes double punishment’.56 However, a parole board’s decision to recall an offender to incarceration in circumstances where the offender committed offences whilst on parole will not constitute double punishment, rather a completion of the earlier sentence.57 Other Examples LM (Guardianship)58 concerned an application for a supervised treatment order pursuant to which LM would be detained at home during periods of increased anxiety or agitation.59 VCAT noted that whilst the applicant had already been convicted, the supervised treatment order would not violate the analogous Victorian Charter provision as the order’s purpose was to protect the public and LM herself.60 Additionally,
46 Fardon v Australia (n 14) 10-11 [7.4]-[7.5]. 47 Castan and Joseph (n 16) [14.213]. 48 Victoria, Parliamentary Debates, Chambers, 12 November 2009, 4028 (Robert Cameron). 49 Belcher v Chief Executive of the Department of Corrections [2006] NZCA 262, [46]. 50 Attorney-General of Victoria and Victorian Equal Opportunity and Human Rights Commission, ‘Submissions of the Victorian Equal Opportunity and Human Rights Commission (Intervening)’, Submission in RJE v Secretary to the Department of Justice, 1341/2008, 7 November 2008, 7 n 40. 51 (2014) 241 A Crim R 172. 52 Ibid 184 [39] citing Slaveski v Smith (2012) 34 VR 206, [24]. 53 Director of Public Prosecutions (DPP) v Bryar (2014) 241 A Crim R 172, 184 [39]. 54 [2014] 1 SCR 392. 55 Ibid [60]. 56 Ibid. 57 Hart v Parole Board [1999] 3 NZLR 97, 101. 58 LM (Guardianship) [2008] VCAT 2084 (‘LM (Guardianship)’). 59 See Disability Act 2006 (Vic) s 191. 60 LM (Guardianship) (n 58) [118].
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forfeiture of property has been held to not amount to punishment for the purposes of the analogous ACT HRA provision and under the Criminal Code double jeopardy provisions.61 In ACT Director of Public Prosecutions v Nikro,62 the defendant was charged with cocaine trafficking and an order was made to seize tainted property.63 Given that the forfeiture’s purpose was to deprive the defendant from gaining material advantage from the offence and to prevent further offences, the property forfeiture did not constitute double punishment under the Victorian Charter.64 Conciliated Outcomes Proceedings involving s 34 violations may result in a court or tribunal ordering a stay of proceedings if the prosecution amounts to an abuse of process,65 or courts may make declarations of incompatibility regarding legislation that breaches this right.66 If a person makes a human rights complaint to the Queensland Human Rights Committee ,67 the commissioner may cause the complainant and public entity to hold a conciliation conference.68 The complainant may seek various conciliation-based resolutions for a breach of s 34 in an informal, quick and efficient manner.69 For example, if a matter has not yet come before a tribunal or court, a conciliation conference could result in abandonment of prosecution if found to be in violation of s 34,70 thus avoiding the costs and burden of defending legal proceedings. However, if the complainant has endured a trial or punishment in breach of s 34, the public entity may provide a public or private explanation or apology, and an acknowledgement and acceptance of responsibility for the wrongful conviction or prosecution. Additionally, the parties could agree that the public entity (such as a disciplinary body, Queensland Corrective Services, Queensland Police Service or the Department of Public Prosecutions) amend internal policies regarding initiating prosecutorial decisions or disciplinary procedures, and provide educational staff training regarding such decisions. Moreover, if an aggrieved party has lost a license or accreditation, parole opportunity, employment or any other thing due to a s 34 violation, the public entity could follow procedures to reinstate the license or accreditation. Finally, a complainant may seek compensation for costs incurred defending a wrongful prosecution a second time, or compensation for losses incurred as a result of wrongly-imposed sanctions, such as fines or time in remand. In circumstances where a wrongful trial or punishment has resulted in distress, embarrassment, trauma, stigma or inconvenience for the complainant,71 compensation may be appropriate to allow the complainant access to support and counselling services.
61 Popa v Austin [2004] QCA 227; ACT Director of Public Prosecutions v Nikro [2017] ACTSC 15 (‘Nikro’). 62 Nikro (n 61). 63 See Confiscation of Criminal Assets Act 2003 (ACT) s 31. 64 Nikro (n 61) [459]. 65 Human Rights Bench Book (n 7) [6.20.2]. See, eg, Williams v Spautz (n 7) 518-520; Viers (n 7) 7 (Thomas J); Carroll (n 3) 659 (Gaudron and Gummow JJ); Walton v Gardiner (n 7) 398 (Mason CJ, Deane and Dawson JJ). 66 HRA (n 11) s 53. 67 HRA (n 11) ss 64-7. 68 HRA (n 11) ss 77(2)(e), 79. 69 HRA (n 11) s 80. 70 See eg, Mihalache v Romania (European Court of Human Rights, Grand Chamber, Application No 54012/10, 12 April 2018). 71 Charles Parkinson, ‘Double Jeopardy Reform: The New Evidence Exception for Acquittals’ (2003) 26(3) University of New South Wales Law Journal 603, 615.
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Section 35: Right to Protection Against Retrospective Criminal Laws
Archer Sullivan, Clare Foran and Sophia Horrocks
‘35 Retrospective criminal laws
(1) A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.
(2) A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.
(3) If a penalty for an offence is reduced after a person committed the offence but before the person is sentenced for the offence, the person is eligible for the reduced penalty.
(4) Nothing in this section affects the trial or punishment of any person for any act or omission that was a criminal offence under international law at the time it was done or omitted to be done.’
Section 35 of the HRA enshrines the right to not be tried for retrospective criminal laws. It is derived from art 15 of the International Covenant on Civil and Political Rights (‘ICCPR’). The European Union, New Zealand, South Africa and Canada have enacted similar provisions in their respective human rights legislation.1 Domestically, s 35 is identical to s 27 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and contains similar terms to s 25 of the Human Rights Act 2004 (ACT). The General Prohibition Section 35(1) protects persons from being convicted of criminal offences that are retroactive in effect. This is based on the presumption that criminal liability should not operate retrospectively because this infringes on an individual’s ability to foresee the criminal culpability of their actions.2 Section 35(1) is limited to ‘criminal offences’. That is, civil offences can operate retrospectively.3 This provision is similar in terms to s 11(1) of the Criminal Code Act 1899 (Qld) (‘Criminal Code’) which relates to the application of changes in criminal law.4 In R v TL the Queensland Court of Appeal set aside sentences in accordance with s 11(1) where the criminal offences acted retrospectively in the circumstances.5 The prohibition does not prevent changes to criminal procedure acting retrospectively, such as the law of evidence in respect of alleged offences.6 In Nicholas v Australia, the United Nations Human Rights Committee (‘HRC’) upheld the validity of the Crimes Amendment (Controlled Operations) Act 1996 (Cth), which directed Australian courts to ‘disregard past illegal conduct of law enforcement authorities in connection with the importation of narcotics.’7 The HRC decided that art 15 of the ICCPR had not been infringed because the drug offence remained materially unchanged.8
1 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature on 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 7 (‘ECHR’); New Zealand Bill of Rights Act 1990 s 26(1); Canada Act 1982 (UK) c 11, sch B pt I s 11(g); Constitution of the Republic of South Africa Act 1996 s 35(3)(l),(n). 2 Polyukhovich v Commonwealth (1991) 172 CLR 501 at 534, 609–610, 642, 687–689; R v Rimmington [2006] 1 AC 459; [2005] UKHL 63 per Lord Bingham [33-35]; Blackstone W, Commentaries on the Laws of England (Strahan, 1809) 15th ed, Vol 1, 46. 3 Lawson v Shire of Yarriambiack [2010] VCC 1066 [56]. 4 Criminal Code Act 1899 (Qld) (‘Criminal Code Act’). 5 R v TL [2004] QCA 430 [9]-[10]. 6 Nicholas v Australia (Communication No 1080/2002) [2.5]. 7 Ibid. 8 Ibid [7.4].
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Prohibition of Ambiguous offences Section 35(1) also reflects the general duty of art 15 of the ICCPR which requires the legislature to ‘define precisely by law all criminal offences in the interests of legal certainty and to preclude criminal laws from being extended by analogy.’9 The extension of common law offences ‘must be done step by step on a case by case basis and not with one large leap’.10 In Kafkaris v Cyprus the Grand Chamber considered a challenge to art 7 of the European Convention on Human Rights (‘ECHR’) on the basis of legislative inconsistency and ambiguity. The Grand Chamber concluded there was a violation under art 7(1) of the ECHR because at the time Kafkaris committed the offence, the scope of the penalty was insufficiently precise.11 Alterations in Penalties Section 35(2) prohibits the imposition of a greater penalty than the penalty applying at the time of the offence. Under s 35(3) offenders are eligible for more lenient penalties prescribed by legislative amendments. These subsections reflect the common law position.12 These rights also have equivalent provisions in s 11(2) of the Criminal Code and s 180 of the Penalties and Sentences Act 1992 (Qld).13 Increases in penalties Domestic and international jurisprudence concerning the interpretation of mirror provisions offers insight into the application of s 35(2).14 In DPP v Leys, Tate JA interpreted the equivalent Victorian Charter provisions and held the prohibition only applied to the changes in the maximum penalty applicable by the Court at the time of offending.15 In Flynn v HM Advocate, Lord Carswell, when interpreting art 7 of the ECHR, provided that ‘the object of the provision appears to have been to prevent a sentence being imposed which could not have been imposed at the time of the offence, because the maximum was then lower.’16 Accordingly, s 35(2) will not prohibit increased sentences for specific instances of offending in the context of serious criminal offences where the maximum has at all times been life imprisonment, such as murder.17 The minimum sentencing requirements imposed under s 9 of the Penalties and Sentences Act 1992 (Qld) are unlikely to be inconsistent with the right.18 The principle that prisoners have no right to have their eligibility for parole determined by reference to the law in force when the original sentence was imposed will also probably not be inconsistent with s 35(2).19 In DPP v Leys, Tate JA clarified that the Victorian Charter’s equivalent provision ‘does not require a comparison between the actual penalty imposed and the penalty that would probably have been imposed at the time the offence was committed’.20 This would require the sentencing judge to ‘engage in an unrealistic hypothetical’.21 Offenders cannot rely on s 35(2) as a basis for receiving more lenient sentencing principles that applied at the time of committing an offence in circumstances where their conduct led to their delayed sentencing.22 To allow offenders to rely on reduced sentencing would be particularly unjust in the context of historic child sexual offences where delayed disclosure is common for victims.23 Section 35(2) can be relied
9 Explanatory Notes, Human Rights Bill 2018 (Qld) 27; R v Rimmington [2006] 1 AC 459 per Lord Bingham [32]-[34]. 10 R v Clark [2003] EWCA Crim 991. 11 Kafkaris v Cyprus (2009) 49 EHRR 35. 12 R v Morton [1986] VR 863. 13 Criminal Code Act s 11(b); Penalties and Sentences Act 1992 (Qld) s 180. 14 Bradley v R [2017] VSCA 69; Stalio v R (2012) 46 VR 426. 15 DPP v Leys (2012) 44 VR 1 [130]. 16 Flynn v HM Advocate [2004] UKPC D 1 [109]. 17 Bradley v R [2017] VSCA 69 [129]. 18 Penalties and Sentences Act 1992 (Qld) s 180. 19 Crump v New South Wales (2012) 247 CLR 1 [70]-[71]; Minogue v Victoria [2018] HCA 27. 20 (2012) 44 VR 1 [132]. 21 DPP v Leys (2012) 44 VR 1 [133]. 22 Bradley v R [2017] VSCA 69 [124]. 23 Royal Commission into Institutional Responses to Child Sexual Abuse, The impact of delayed reporting on the prosecution and outcomes of child sexual abuse cases (Report, 2016) 75.
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upon as a bar to increasing the maximum penalty available for an offence, as opposed to a means for reducing a sentence based on historic sentencing principles.24 Reduction in penalties Section 35(3) provides the offender with ‘eligibility’ for a reduced sentence, rather than mandating a reduction. Some judicial interpretation of s 11(2) of the Criminal Code suggests this eligibility is unlikely to apply where the relevant offence has been abolished under the Criminal Code.25 Section 20(2)(d) of the Acts Interpretation Act 1954 (Qld) provides that a penalty can still be imposed under a repealed offence. In R v PAZ, the Queensland Court of Appeal considered the offence of unlawful sodomy under s 208 of the Criminal Code, abolished by the time of sentencing. The Court stated that ‘under s 20 of the Acts Interpretation Act the repeal of s 208 does not mean that the prosecution can no longer be maintained, nor that the penalty cannot be imposed’.26 McMurdo JA in R v HBT disagreed with the reasoning in PAZ and HYX, on the basis that it would ‘substantially erode the operation of section 11(2)’27 and consequently should only be used where no other interpretation is available. In the subsequent case of R v JAA, the Queensland Court of Appeal considered the reasoning in PAZ and McMurdo JA's alternative construction in HBT and concluded that PAZ should be followed.28 Limited to Penalties Subsections 35(2) and (3) only apply in the context of a ‘penalty’. Accordingly, the application of the right will depend on whether the measure can be construed as a ‘penalty.’29 In Welch v United Kingdom, the Court interpreted ‘penalty’ under art 7 of the ECHR and provided various factors that could be taken into account, including: ‘the nature and purpose of the measure in question; its characterisation under national law; the procedure involved in the making and implementation of the measure; and its severity’.30 Under the equivalent Victorian Charter provisions, course of conduct charges and fines have constituted penalties.31 In WBM v Chief Commissioner of Police the imposition of retrospective obligations of registration and reporting did not constitute a penalty.32 The purpose of the requirement was to prevent reoffending, facilitate investigation and prosecute future offences.33 In ARS v Canada, the HRC considered that the implementation of mandatory supervision requirements was for a rehabilitative purpose as opposed to constituting a penalty.34 Changes to non-parole periods were considered to be a ‘penalty’ under the New Zealand Bill of Rights Act 1990.35 Exceptions to the Right Section 35 is subject to the limitation under s 13, whereas under the ICCPR it is non-derogable.36 Section 35(4) provides an exception for offences that constitute a criminal offence under international law. Queensland can create ex post facto laws criminalising conduct that constituted an offence under international law at the time of the offending. The Explanatory Note contemplates that sub-s (4) would allow for retrospective criminalisation of ‘war crimes or crimes against humanity that were not crimes under domestic law but were crimes under customary international law at the time they were committed’.37
24 Bradley v R [2017] VSCA 69 [126]-[129]. 25 Woodward v The Queen [2017] NSWCCA 44 [61]-[64]; R v HYX [2017] QSC 108 [35]. 26 R v PAZ [2017] QCA 263 [137]. 27 [2018] QCA 227 [112]. 28 R v JAA 3 Qd R 242 [178]-[187]; See also R v Nooryan [2019] QCA 294 [42]-[43]. 29 Explanatory Notes, Human Rights Bill 2018 (Qld) 27. 30 Welch v United Kingdom (1995) 20 EHRR 247 [28]. 31 R v R S [2016] VCC 1464 [31]-[38], [45]; Macdonald v County Court of Victoria [2013] VSC 109 [68]–[73]. 32 WBM v Chief Commissioner of Police (2010) 27 VR 469 [63]. 33 Ibid [64]. 34 ARS v Canada (Communication No 91/1981) [5.3]. 35 Morgan v Superintendent, Rimutaka Prison [2005] NZSC 26. 36 ICCPR art 4(2). 37 Explanatory Notes, Human Rights Bill 2018 (Qld) 27.
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Conciliated outcomes Purported complainants may seek the following conciliated outcomes for an alleged breach of this right: • Making a complaint to a public entity where a penalty has been issued that was not contrary to law at the time of the offending.38 An example where this mechanism may have provided recourse is Macdonald v County Court of Victoria, wherein the applicant disputed speeding fines that were retroactive in effect.39 • Relying on s 35(3) as a basis for making submissions in court proceedings in order to benefit from reductions in a penalty for a specific offence.40 • Seeking clarification in circumstances where criminal legislation may be ambiguous, as in Kafkaris v Cyprus.41 • Advocating for the Attorney-General to seek a review of by the Queensland Human Rights Commission (‘QHRC’) of the effect of Acts, statutory instruments and the common law where it contravenes s 35 of the HRA. The QHRC can give the Attorney-General a written report about the outcome of the review.42
38 HRA s 65. 39 Macdonald v County Court of Victoria [2013] VSC 605. 40 R v Morton [1986] VR 863. 41 Kafkaris v Cyprus (2009) 49 EHRR 35. 42 Explanatory Notes, Human Rights Bill 2018 (Qld) 8.
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Section 36(1): Right to Education
Sienna McInnes-Smith and Christoph Baer
‘36 Right to education
(1) Every child has the right to have access to primary and secondary education appropriate to the child’s needs. …
The right to education is an ‘empowerment’ right,1 being both a multiplier and bridge to other human rights.2 This means that its realisation facilitates the fulfilment of other rights, while its denial precludes enjoyment of them.3 In the seminal case of Brown v Board of Education in 1954, the United States Supreme Court emphasised the importance of education to a democratic society and observed that education enables citizenship, making it the most important function of state and local governments.4 This is particularly so in Australia, with the country being founded upon principles of representative and responsible government, and even more so in Queensland, where there is a unicameral Parliament. Thus, the right to education contained in s 36 of the Human Rights Act 2019 (Qld) (‘HRA’) must be interpreted carefully. Interpretation International Law Queensland’s right to education is derived from art 13 of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) and is intended to provide rights regarding ‘the aspects of education service delivery for which the State is responsible’.5 Under the HRA, courts are expressly permitted to consider international law to aid the interpretation of rights in the Act.6 Furthermore, state parties are obliged to exercise the right without discrimination on the grounds of race, colour, sex, language, religion, political opinion, national or social origin, property, birth or other status.7 Australian Jurisdictions Aside from Queensland, the only other Australian jurisdiction to have a right to education is the ACT. That right was added as an amendment eight years after the commencement of the Human Rights Act 2004 (ACT) itself, to facilitate a person in exercising their right to vote.8 The ACT right is distinguishable from Queensland’s because it is explicitly confined to immediately realisable aspects and freedom from discrimination in education.9 Furthermore, only two cases have been brought in relation to the ACT right: Wang and Islam.10 The former involved little discussion of the right, and in the latter it was not enforced, due to a lack of discrimination.11 Few other Commonwealth countries have such express rights to education.12
1 ‘Special Rapporteur on the right to education’, Office of the High Commissioner of Human Rights (Web page, 25 August 2019)
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While the United Kingdom (UK) subscribes to the European Convention on Human Rights which does contain a right to education, it is quite different from the right contained in the HRA.13 Education cases in Australia, conducted without a right to education, have been predominantly framed as discrimination cases, often centred around disability.14 This is because education decisions are generally not reviewable,15 and successfully argued discrimination cases may enliven remedies.16 However, few cases brought in this manner have been successful since High Court of Australia’s decision in Purvis.17 Purvis made education discrimination cases difficult to argue because the court narrowed the circumstances in which discrimination based upon disability would be found. They held that the test was whether a comparator would have been treated similarly, in circumstances not materially different, if they displayed all the characteristics of the disabled person, apart from the disability itself.18 This meant, in that case, that the treatment the complainant had received was compared to the treatment of a child without his brain injury, but with his behaviour, irrespective of the relationship between the brain injury and the behaviour.19 Purvis was clearly outcome-driven and relied on Parliament to make legislative changes.20 Subsequently, new legislation was implemented to clarify the position in Purvis,21 imposing a duty to make reasonable adjustments for children with disabilities so that they could access education facilities and services.22 Despite this, Purvis continues to be applied in the usual way.23 This appears to be because without other grounds for legal review, education decisions continue to be framed and contested as discrimination cases. The right to education thus appears to provide a more appropriate ground upon which to base complaints regarding education, constituting a turning point in Queensland for students and education providers. It remains to be seen, however, exactly what a right to education means. The Right in Queensland Appropriate Education Previously, it was open to educational institutions to provide support for children with special needs, but there was no obligation to do so,24 nor was there an obligation to provide minimum, baseline levels of education across educational institutions or to detained children and other persons.25 The right to education appears to address the former, by implementing an entitlement for children to have access to education ‘appropriate’ to their needs and access to further education ‘based on ability’.26 The idea of an ‘appropriate’ education is well established in UK legislation and United States case law.27 It is underpinned by the principle that children should be educated together where possible, with the use of supplementary aids and services such as individualised education plans.28 Indeed, the United Nations Economic Social and Cultural
13 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), as supplemented by Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 20 March 1952, ETS No 9 (entered into force 18 May 1954) Art 2. 14 See inter alia: Hinchcliffe v University of Sydney [2004] FMCA 85; Hurst and Devlin v Education Queensland [2005] FCA 405; Clarke v Catholic Education Office [2003] FCA 1085. 15 Education (General Provisions) Act 2006 (Qld) s 401 and Education Act 1990 (NSW) s 107, excepting Education Act (NT) Part 5. 16 Disability Discrimination Act 1992 (Cth) s 22; Anti-Discrimination Act 1991 (Qld), ss 7(h). 17 Purvis v New South Wales (2003) 217 CLR 92. 18 Ibid [223]-[224]. 19 Ibid [225]. 20 Ibid [96]. 21 Commonwealth, Parliamentary Debates, House of Representatives, 3 December 2008, 12292 (Robert McClellend, Attorney-General). 22 Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) ss5(2) and 6(2). 23 Although see Woodforth v State of Queensland [2017] QCA 100; and see further Tamara Walsh and Bridget Burton, ‘Queensland’s new right to education: What does it mean for children with disabilities?’ (2019) 24 Education (General Provisions) Act 2006 (Qld) s 420. 25 This was a concern of the ACT Human Rights Commission in 2011: ACT Human Rights Commission, ‘The Right to Education: Human Rights Legal Factsheet’ (2012) 4. 26 HRA (n 6) s 36. 27 Special Educational Needs and Disability Act 2001 (UK) s 1 and in the US: Parks v Pavkovic (1985) 753 F2d 1397; Timothy W v Rochester School District (1989) 875 F2d 954 and more recently: Andover Schools Committee v Bureau of Special Education (2013) Appeals of the Div. of Admin. Law Appeals, No. 12-12288-DPW. 28 Tamara Walsh, ‘Children with special needs and the right to education’ (2012) 18(1) Australian Journal of Human Rights 27, 32.
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Rights Committee has elaborated upon this ‘appropriateness’ standard, stating that reasonable accommodations should be made to ensure that disabled students receive an equal standard of education.29 As rights are to be construed broadly in Australia,30 the wording of the right appears to place a similar positive duty on public education institutions to provide student with disabilities with sufficient support to level the education playing field, as well as constituting a ground for redress when that duty is neglected. However, s 13 of the HRA allows the right to education to be reasonably limited. While the question of what is ‘reasonable’ will invariably depend on the facts of each case, cases brought under anti-discrimination legislation may provide some guidance on the likely approach of the courts. Those cases have tended to focus on an institution’s resources,31 the student’s capacity to learn without extra resources,32 and the availability of less costly means of providing support.33 An important gap relates to independent schools, which receive significant federal funding. Federal funding models disproportionately benefit schools catering to students from affluent backgrounds,34 yet only public education institutions, like the Department of Education,35 public vocational institutions and state schools,36 are bound by the right.37 It is unclear whether the right might allow for mandated minimum educational standards to be set. Notably, art 13 of ICESCR does not go so far as to require equal treatment between schools, but only that the right to education must conform to such minimum educational standards as may be laid down or approved by the State.38 Regardless, education must be ‘equally accessible to all’.39 The accessibility of education has been interpreted in relation to the ICESCR right to education, which should guide the interpretation of the Queensland right.40 Accessibility is one of the four As (accessibility, availability, acceptability and adaptability),41 forming the minimum standards with which states must comply.42 According to the Special Rapporteur on the right to education, ‘access’ to education has three elements: equal access (non- discriminatory), physical access (including to rural areas and vulnerable populations) and economic access.43 ‘Available’ education is closely related to ‘accessible’ education, requiring there to be sufficient quantities of educational programs and institutions with the necessary means of functioning.44 ‘Acceptable’ education focuses on the form and substance of education and its quality, while an ‘adaptable’ education requires it to be flexible to meet the needs of the communities and societies in which it operates and to respond to the needs of culturally and socially diverse students.45 The above interpretation would likely affect the provision of education services to persons in detention. In 2011, the ACT Human Rights Commission raised concerns that the quality of education provided to young people in detention facilities may not be consistent with the scope of the right to education.46 This may arise
29 UN Committee on Economic, Social and Cultural Rights, General Comment 13, UN Doc E/C.12/1999/10 (1999) [6]. 30Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 [143]. 31 Phu v New South Wales (Department of Education and Training) [2009] NSWADT 282; Woodbury v ACT [2007] ACTDT 4. 32 Turner v Department of Education and Training (2007) VCAT 873. 33 YB v State of Queensland [2010] QCAT 395; Woodbury v ACT [2007] ACTDT 4. 34 Lindsay Connors and Jim Morrow, ‘Imperatives in Schools Funding: Equity, Sustainability and Achievement’ (Australian Educational Review, 2015) 50; Louise Watson and Chris Ryan, ‘Choosers and Losers: The Impact of Government Subsidies on Australian Secondary Schools’ (2010) 54(1) Australian Journal of Education 86, 86-87. 35 HRA (n 6) s 9(1)(a). 36 Ibid s 9(1)(h). 37 Ibid s 58. 38 ICESCR (n 7) art 13 (3). 39 HRA (n 6) s 36(2). 40 Ibid s 48. See also Acts Interpretation Act 1954 (Qld) s14B(1)(a). 41 Katarina Tomaševski, Preliminary Report of the Special Rapporteur on the Right to Education, UN ESCOR, Communication on Human Rights, 55th sess, UN Doc E/CN.4/1999/49 (13 January 1999), 15-23; adopted by CESCR: Committee on Economic Social and Cultural Rights, General Comment No 13: The Right to Education, 21st sess, UN Doc E/C.12/1999/10 (13 January 1999) [6]. 42 Phillip Alston, ‘Out of the Abyss: the Challenges Confronting the New UN Committee of Economic, Social and Cultural Rights’, 9 Human Rights Quarterly 332, 353. 43 Tomaševski (n 41) 20. 44 Ibid 18. 45 Ibid 22-23. 46 ACT Human Rights Commission, ‘The ACT Youth Justice System 2011: A Report to the ACT Legislative Assembly by the ACT Human Rights Commission’ (2011) 265.
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where logistical or security arrangements prevent the provision of education services meeting the baseline standard required by the right, especially in cases involving persons with low literacy levels or who require more learning support than a typical student.47 However, it seems that the inadequacy of that education would have to be severe to infringe the right.48 Further Education Queensland’s right also appears to apply to ‘further education’, which has been interpreted broadly in the ACT. In Islam, McWilliam J suggested that ‘further education’ may include higher level tertiary education, such as masters and PhD courses, however, the Queensland right expressly limits ‘further education and training’ to that which is ‘vocational’, and where there is ‘ability’ to complete such courses.49 The reason for using ‘ability’, rather than ‘capacity’ as in the ICESCR right, is unknown. However, the difference is unlikely to be substantive: the definition of each word in the Macquarie Dictionary contains the other.50 Moreover, by limiting this right to where there is ‘ability’, educational institutions retain their power to determine entry requirements and standards,51 without burdening the right. Application In considering how public education institutions can act consistently with the right to education, Queensland decision-makers may heed the Maastricht Principles, which delineate a ‘respect, protect, fulfil’ interpretation of states’ duties under art 13 of ICESCR.52 This would discourage education providers from preventing a person from attending their institution, protect them from expulsion and fulfil their right by providing the progressive realisation of free education. However, this obligation is subject to the reasonable limitation of rights where demonstrably justified.53 The right to education appears to oblige public educational institutions to make appropriate adjustments to allow all students to access education equally. This means that the ultimate question will become one of reasonableness and proportionality,54 which balances the rights of students with the ability of institutions to provide them with equal educational opportunities. Conciliated Outcomes Previously, there were no remedies for decisions regarding education in Queensland because those decisions were not reviewable.55 While the HRA does not contain any remedies, it will allow a declaration of incompatibility to be made where a law is inconsistent with the right.56 This lack of effective remedies increases the importance of conciliated outcomes because they can provide redress to an aggrieved party which is quicker, cheaper and more likely to be favourable than court proceedings. There are several kinds of conciliated outcomes that a claimant may seek regarding a perceived breach of their right to education, depending upon the circumstances of their case. The most commonly given outcomes in education discrimination conciliations are: • Statements of regret; • Compensation; • Policy changes;
47 Ibid 265. 48 Islam v Director-General Justice and Community Safety Directorate (No 3) [2016] ACTSC 27. 49 HRA (n 6) s 36(2). 50 Macquarie Dictionary (online at 30 August 2019) ‘Ability’ and Macquarie Dictionary (online at 30 August 2019) ‘Capacity’. 51 Griffith University v Tang (2005) 221 CLR 99, 109 [15]. 52 United Nations Economic and Social Council, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, CESCR, 24th sess, Agenda Item, Doc E/C.12/2000/13 (2 October 2000) [6]. 53 HRA (n 6) s 13. 54 Walsh (n 28) 47. 55 Education (General Provisions) Act 2006 (Qld) s 401. 56 HRA (n 6) s 53.
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• Anti-discrimination training; and • Revised terms.57 Less frequently given outcomes include: • (Re)enrolment; and • Compensation for expenses incurred by enrolling in a new institution.58 Although the most commonly received outcome in education discrimination conciliations is a statement of regret,59 those most useful to complainants are substantive ones such as enrolment, adjustments and revised terms or practices or the provision of more resources. Revised terms and adjustments may include extra exam time, extra teacher training, supplying a teacher’s aide or formulating an individualised education plan. In doing so, the institution may agree to consult with members of the affected community and even donate to a charity or advocacy organisation as a measure of goodwill. While a statement of regret is important because it acknowledges the claimant’s suffering, it is not a remedy and means that the respondent does not admit liability for their (in)action. Where substantive changes are unachievable, an apology may be more appropriate in upholding the inherent dignity and worth of all human beings enshrined in the Preamble of the HRA.60
57 This is from my own observations of the Australian Human Rights Commission, Conciliation Register,
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Section 36(2): Right to Vocational Education
Rebekah Stuart
‘36 Right to Education
…(2) Every person has the right to have access, based on the person’s abilities, to further vocational education and training that is equally accessible to all.’
Only Queensland and the ACT protect the right to vocational education and training (‘VET’).1 This has been described as a progressive recognition2 of the importance of ‘economic, social and cultural rights’.3 The following chapter will speculate how s 36(2) may be interpreted by the courts and explore the potential of conciliated outcomes to provide applicants with effective remedies under this right. Section 36(2) is a distinctive right. Unlike the majority of civil and political rights, the protection of VET has a tangible impact on people’s day-to-day lives.4 It is also essential in the achievement of other human rights such as cultural rights and the right to work.5 The Human Rights Act 2019 (Qld) (‘HRA’) allows aggrieved individuals to seek remedies against public entities who may have breached their human rights. VET centres are defined as institutions ‘carrying out a public function’ and, therefore, are covered by the Act (s 10(3)(b)). For their part, VET institutions must show that during their operation they gave proper consideration to human rights. Victorian judges have clarified that ‘the word “proper” must be given work to do’,6 stating they must not merely pay ‘lip service’,7 but give genuine consideration to affected rights. Queensland public entities are likely to be held to the same high standard. Interpretation Human rights law is an emerging area of law in Queensland and, as a uniquely protected right, cases relating to the protection of VET are rare. Consequently, the interpretation of s 36(2) will initially rely on commentary and international sources of law. Both the Acts Interpretation Act8 and s 48(3) of the HRA permit the use of extrinsic material to assist in interpretation. Furthermore, as s 36(2) is ‘drawn from’9 the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’),10 it somewhat incorporates art 13 into Queensland law.11 The Universal Declaration on Human Rights (‘UNDHR’)12 and Convention on the Rights of Persons with Disabilities13 also seek to protect rights to vocational education. These are not binding on Australia, but
1 Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2004 (ACT) s 27A. 2 Legal Affairs and Community Safety Committee, Parliament of Queensland, Inquiry into a possible Human Rights Act for Queensland, (Report No. 30, 55th Parliament, June 2016) 4. 3 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). 4 Legal Affairs and Community Safety Committee, Parliament of Queensland, Inquiry into a possible Human Rights Act for Queensland, (Report No. 30, 55th Parliament, June 2016) 32; Australian Research Council, ‘Australian Capital Territory economic, social and cultural Rights research project’ (Linkage Project) No LP0989167, Research Project Report, 21 September 2010) 78. 5 Committee on Economic, Social and Cultural Rights, General Comment No 13 (1999): The Right to Education (Article 13 of the International Covenant on Economic, Social and Cultural Rights), UNESCOR, 21st sess, UN Doc E/C. 12/1999/10 (8 December 1999) 4. 6 Bare v IBAC [2015] VSCA 197, para 276. 7 Certain Children v Minister for Families and Children [2017] VSC 251, para 221, 515. 8 Acts Interpretation Act 1954 (Qld) s 14B. 9 Explanatory Notes, Human Rights Bill 2018 (Qld) 5. 10 Ibid. 11 Human Rights Bill 2018 (Qld) 1. 12 Universal Declaration of Human Rights, GA Res 217 (III), UN GAOR, UN Doc A/810 (10 December 1928), art 26. 13 Convention of the Rights of Persons with Disabilities, GA Res 106, UN Doc A/RES/61/106 (13 December 2006, adopted 3 May 2008).
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judges may find them persuasive as many cases which arise in relation to VET concern people with disabilities. As such, it is useful to break the section down to distil its meaning.
‘Every person has the right to…’ The HRA is a piece of State legislation; therefore, it applies to all natural persons in Queensland.14 Importantly, s 36(2) is not restricted to those with citizenship or residence rights.15 While this may suggest a broad application of the right, the ‘piggy-back’ restrictions16 to obtaining a remedy under the HRA are key limitations on who may enforce this right.
‘The right to have access…to further vocational education and training’ ‘Access’ is not defined in the HRA. A textual interpretation might suggest this term qualifies the right as it is unclear whether the right to education, or to participate in education, is different to the right to merely access education.17 The term is ambiguous,18 and therefore, extrinsic material may be consulted. Many international and State instruments speak in terms of the ‘right to education’,19 not only the right to access VET. Others use the term ‘available and accessible’20 or ‘equally accessible’.21 On this language scale, Queensland appears on the more restrictive end of the spectrum. As noted previously (regarding HRA s 36(1)), courts will have specific regard to art 13 of the ICESCR which, in the UN commentary, remarks that the essential features of the right to education are availability, accessibility, acceptability, and adaptability.22 This ‘4A’ approach is applied to ‘all levels of education’23 such that a right to education is genuine when all 4As are satisfied. The ‘4A’ method has been applied consistently across States, regional institutions, and various UN bodies.24 The court may, therefore, find this approach particularly persuasive. While the term ‘access’ appears to suggest a limited right to VET and is a narrower construction than the ICESCR right, international materials show variety in how this right is linguistically expressed, but consistency as to interpretation. Therefore, it is likely that courts will prefer this broader interpretation of ‘access’ informed by the ICESCR over a narrow textual interpretation. ‘…the right to have access, based on the person’s abilities…’ Careful interpretation is needed for the phrase ‘base on the persons’ abilities’, as it has the potential to significantly qualify the right to VET in Queensland. While interpretation is likely to be informed by principles
14 HRA s 11. 15 Bill Mitchell ‘Practicing law under the human rights act 2019’ (2019) 25 James Cook University Law Review 1, 9. 16 HRA s 59. 17 Legal Affairs and Community Safety Committee, Parliament of Queensland, Human Rights Bill 2018, (Report No. 26, 56th Parliament, February 2019) 51 (‘Legal Affairs and Community Safety Committee’). 18 Ibid. 19 Universal Declaration of Human Rights, GA Res 217 (III), UN GAOR, UN Doc A/810 (10 December 1928), art 26; International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 13; Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), as amended by Protocol (no 1) to Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 20 March 1952), art 2; Human Rights Act 1998 (UK), protocol 1, art 2. 20 Convention on the Rights of the Child, opened for signature 20 November 1989, UNTS 1577 (entered into force 2 September 1990), 28. 21 World Conference on Education for All Jomtien, Thailand 5-8 March 1990; United Nations, ‘Sustainable Development Goals’, United Nations Sustainable Development goals: Goal 4 Education (Web Page, 2 April 2020)
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of equity and inclusive education, this phrase means s 36(2) is likely much narrower than comparative jurisdictions. The HRA does not clarify what constitutes a person’s abilities, which abilities are relevant, and how they might be assessed. Therefore, there is significant ambiguity in how the right to VET may be ‘based on’ someone’s ‘abilities’. The court has already strayed controversially into the realms of assessing behaviours and ability in education in the case of Purvis.25 This was an action brought against a school for discrimination against a child with an acquired brain injury. In determining discrimination, the court asked whether the child would have been treated similarly if he had displayed the same behaviour, but did not have a disability.26 This appears to ignore the relationship between the disability and the behaviour. Extrapolating such assumptions about disability or disadvantage of any kind to s 36(2) is alarming as this may inform an interpretation where the right to VET is conditional upon misconceptions about a person’s ‘ability’.27 Some authors suggest that the phrase was included to allow VET institutions to set entry requirements such as prerequisite scores.28 This is not uncommon in international instruments,29 however, it is perhaps unusual to include logistical limitations within the articulation of a human right. Arguably, it would be more appropriate to consider entry scores and resourcing of VET institutions in a later section of the HRA, such as the limitation provision.30 Fundamentally, this phrase acknowledges that the right to vocational education will manifest differently for each person. The HRA aligns with many other human rights instruments in recognising the need for rights to be delivered equitably or based on individual circumstances. It is important that one main objective of the statute is to ‘build a culture in the Queensland public sector that respects and promotes human rights’.31 It is therefore open to the courts to interpret ‘based on the person’s ability’ as a positive obligation on VET institutions to show that the education they provide is tailored to individuals. Victorian jurisprudence has tended to place a high bar on public entities to show that they genuinely considered human rights. This may be applied to s 36(2) in a way which facilitates VET providers working closely with their students to fulfil their right to vocational education in a manner which is based on their personal abilities. When interpreting this ambiguous phrase, judges may have reference to extrinsic material such as Education Queensland’s inclusive education policy. Their policy states they provide learning environments which are ‘supported by reasonable adjustments and teaching strategies tailored to meet their [students’] individual needs’.32 This domestic policy and the objectives of the HRA suggest that judges may avoid controversial determinations of ‘ability’ (like in Purvis) and instead interpret ‘based on the person’s abilities’ in a manner which encourages VET education to respond to the needs of individuals. ‘...to further vocational education and training…’ Domestic legislation defines ‘vocational education and training’ with clarity, so s 36(2) is likely to apply this definition. The inclusion of the word ‘further’ is interesting because it blurs the line between higher education and vocational education. In Islam33 it was stated that ‘the term [further education] should be construed broadly’. However, given that higher education is governed by federal laws in Australia, these tertiary
25 Purvis v New South Wales (2003) 217 CLR 92. 26 Ibid 225. 27 Legal Affairs and Community Safety Committee (n 17) 54. 28 Lucia Cajola ‘Tertiary Vocational Training and Lifelong Learning for Adults with Autism: Comparing Domestic Laws and Best Practices’ (ed), Protecting the Rights of People with Autism in the Fields of Education and Employment International, European and National Perspectives (Springer International Publishing, 2015) 109, 135. 29 Universal Declaration of Human Rights, GA Res 217 (III), UN GAOR, UN Doc A/810 (10 December 1928), art 26.; International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 13. 30 HRA s 13. 31 Ibid s 3(b). 32 Queensland Department of Education, Inclusive Education Policy (Web Page, 2 April 2020) [1]
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institutions will be outside of the remit of the HRA.34 ‘Further’ may be interpreted as a reference to the diversity of institutions and mediums through which VET is taught.35 ‘…to vocational education and training that is equally accessible to all’ Semantic clarity is needed to understand the role of the phrase ‘equally accessible to all’ in s 36(2). Importantly, the structure of the section means that ‘equally accessible’ is operative in relation to ‘vocational education and training’. It does not appear to attach to the ‘right to access’. Therefore, this phrase means that s 36(2) protects people’s right to access, based on their abilities, VET that is provided by public (not private) institutions. The function of this phrase is difficult to understand due to s 9, which already excludes private VET providers from the jurisdiction of the HRA as they are not public entities. However, to read a general principle of equality into this last phrase would make s 36(2) ‘internally inconsistent because vocational education and training cannot be “equally accessible to all” whilst also being conditional on “ability”’.36 This is not to say that s 36(2) precludes equal opportunity to VET, it simply does not derive from the final phrase. The HRA operates alongside the Anti-Discrimination Act 1991 (Qld), which serves to protect against discrimination in the implementation of s 36(2). Furthermore, s 36(2) is subject to other rights in the act which protect equal treatment more explicitly.37 Equal treatment and opportunity to VET is also preserved in the ICESCR. Through these mechanisms, courts are likely to imply principles of equality in s 36(2). Limitations Rights are rarely absolute. The HRA states that rights may be subject to ‘reasonable limits that can be demonstrably justified’.38 Where the phrase ‘based on a person’s ability’ is interpreted as a positive burden on educational institutions to provide individualised education, s 13 will be relevant in determining the limits of this obligation. In the ACT, it has been held that high financial cost may limit the right to education.39 This, however, was an extreme case and as Mitchel importantly clarifies, the HRA will not ‘negate the economic considerations but it will rebalance the iterative process’.40 The wording of this section is more restricted than its national and international counterparts, particularly considering the inclusion of the phrase ‘based on the person’s ability’. While there is a risk that interpretation of this phrase may manifest in segregation of students, particularly due to the lack of explicit reference to equality and non-discrimination in the section, it is open to the court to take a clear stance on the matter to encourage inclusive and equitable education. While the wording of s 36(2) is certainly narrow, a broad interpretation of ‘access’ and recognition that equal opportunity to education is implied by this right are likely. Conciliated Outcomes The HRA establishes a novel system of resolution which emphasises conciliation processes.41 For those seeking to enforce rights under s 36(2), this pathway is likely to be preferable to court proceedings which are lengthy, costly, and may be less creative in the outcomes they can provide for complainants. Conversely, conciliation is designed to achieve individualised outcomes to resolve specific issues, which is appropriate to enforce this right.
34 Andrew Norton ‘Commonwealth Control of Universities’ (2005) 12(2) Centre for Independent Studies 288. 35 Legal Affairs and Community Safety Committee (n 17) 54. 36 Ibid. 37 HRA ss 15, 23, 27. 38 HRA s 13(1). 39 Woodbury v Australian Capital Territory [2007] ACTDT 4 [94]. 40 Bill Mitchell ‘Practicing law under the human rights act 2019’ (2019) 25 James Cook University Law Review 1, 13. 41 HRA part 4, subdivision 4.
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Circumstances which arise to prevent people realising their right to VET will be unique in each case. As such, the conciliated outcomes should be designed around the barriers faced or harm suffered. The Queensland Human Rights Commission reports that common conciliation outcomes include:42 • An apology; • Changing organisational policy/practices; • Paying compensation for hurt feelings and lost wages; and • Organising training in the workplace. Particularly relevant to s 36(2) is the change in policy practices and workplace training. This may result in VET students being granted additional exam time or assessment extensions,43 the installation of disability parking spaces,44 tailored learning plans for students,45 or the renovation of busses to ensure wheelchair access.46 It may also be appropriate for administration fees to be waived47 or compensation to be paid to individuals who have suffered harm as a result of their deprivation of this right.48 These examples from the ACT demonstrate how varied solutions may be. Where VET institutions take a collaborative, ‘rights-based approach’49 to conciliation, the most effective solutions are likely to be found in the problem. Clearly, the conciliation framework is an important aspect of ensuring s 36(2) is available for everybody.
42 Queensland Human Rights Commission All About Conciliation (Web Page 2 April 2020)
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Section 37: Right to Health Services
Zoe Cornwell and Gemma Galloway
‘37 Right to health services
(1) Every person has the right to access health services without discrimination.
(2) A person must not be refused emergency medical treatment that is immediately necessary to save the person’s life or to prevent serious impairment to the person.’
The Human Rights Act 2019 (Qld) (‘HRA’) enshrines a ‘right to health services’ in s 37.1 This provision is comprised of two limbs: the right to access health services without discrimination,2 and the right not to be refused emergency medical treatment.3 The outline below considers how Queensland decision-makers are likely to interpret s 37 and the potential outcomes that complainants may seek under the HRA’s conciliation process. Interpretation Public Entities It is unlawful under the HRA for a public entity to make a decision that is not compatible with human rights or to fail to give proper consideration to a human right.4 ‘Public entity’ is defined as ‘an entity whose functions are, or include, functions of a public nature when it is performing the functions for the State or a public entity’.5 Section 10(3)(b) provides that emergency and public health services are both functions of a public nature. Therefore, public hospitals and emergency health service providers constitute public entities under the HRA. Arguably, private hospitals may not be classified as public entities,6 however, they may choose to ‘opt in’ to the public authority provisions.7 Other Jurisdictions While Victoria8 and the ACT9 have human rights legislation, neither of these jurisdictions have a right to health services. Therefore, there is no case law from any Australian jurisdictions to provide guidance as to the potential interpretation and application of s 37. Internationally, South Africa is the only jurisdiction with an express right to health services.10 However, other jurisdictions and international instruments confer similar protections under other rights, in particular the ‘right to life’ and the ‘right to health’.11 Some of the more relevant international instruments are outlined briefly
1 Human Rights Act 2019 (Qld) s 37. 2 Ibid s 37(1). 3 Ibid s 37(2). 4 Ibid s 58(1). 5 Ibid s 9(1)(h). 6 Jasmine Sears, ‘Human Rights Act for Queensland and Healthcare Implications’ (Article, 28 March 2019)
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below. These instruments are relevant to the interpretation of s 37 because Australian courts can consider international law and the judgments of foreign courts and tribunals when interpreting ambiguous statutory provisions.12 International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) The ICESCR is the central instrument for the protection of the right to health, which is included in art 12(1).13 The Committee on Economic, Social and Cultural Rights (‘CESCR’) has stated that ‘the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realisation of the highest attainable standard of health.’14 This encompasses the ‘underlying determinants of health’, such as access to food, water, nutrition, housing, sanitation, healthy working conditions and a health environment.15 The CESCR has interpreted the right to health not as a ‘right to be healthy’ but as a right that constitutes both freedoms and entitlements.16 South Africa The only international jurisdiction with an express right to healthcare services is South Africa.17 Section 27 of the Constitution of the Republic of South Africa provides a right to access health care services, sufficient food and water and social security,18 and a right not to be refused emergency medical treatment.19 The application of South African jurisprudence to s 37 of the HRA is considered further below. Canada The Canadian Charter of Rights and Freedoms does not contain a specific right to health, but actions regarding health are brought under s 15 (equality rights).20 For example, in Eldridge v British Columbia,21 a publicly funded Medicare scheme’s failure to provide sign language interpretation services to deaf people amounted to discrimination and violated s 15(1). United Kingdom Similarly, although the Human Rights Act 1998 (UK) does not contain a right to access health services, it contains the right to life in art 2, which is particularly relevant to matters concerning the provision of health services.22 The European Court of Human Rights (‘ECtHR’) has interpreted art 2 as requiring the state to make regulations compelling hospitals to adopt appropriate measures for the protection of patients’ lives.23
February 1965); Charter of Fundamental Rights of the European Union, opened for signature November 4 2000, [2000] OJ C 364/1 (entered into force 1 December 2009) (‘EU Charter’); Canada Act 1982 (UK) c 11, sch B pt I (‘Canadian Charter of Rights and Freedoms’). 12 HRA (n 1) s 48(3); Victorian Charter (n 8) s 32(2); ACT Act (n 9) s 31. 13 ICESCR (n 11) art 12. See also Office of the United Nations High Commissioner for Human Rights and the World Health Organisation, The Right to Health: Fact Sheet No 31 (United Nations, Geneva, June 2008) 9 (‘The Right to Health: Fact Sheet No 31’). 14 Committee on Economic, Social and Cultural Rights, General Comment No 14 (2000): The Right to the Highest Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), UN ESCOR, 22nd sess, Agenda Item 3, UN Doc E/C.12/2000/4 (11 August 2000) [9] (‘General Comment No 14’). 15 Ibid [4], [11]-[12], [36]. 16 Jill Stavert and Rebecca McGregor, ‘Domestic Legislation and International Human Rights Standards: The Case of Mental Health and Incapacity’ The International Journal of Human Rights 22 (2018) 80. 17 South African Constitution (n 10) s 27(1)(a). 18 Ibid s 27(1). 19 Ibid s 27(2). 20 Canadian Charter of Rights and Freedoms (n 11) s 15. 21 Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624 (‘Eldridge’). 22 Elizabeth Haggett, The Human Rights Act 1998 and Access to NHS Treatment and Services: A Practical Guide (University College London, 2001) 13. 23 Oyal v Turkey (2010) 51 EHRR 30 [54] (‘Oyal’); Lopes de Sousa Fernandes v Portugal (2016) 66 EHRR 28 [39] (‘Lopes de Sousa Fernandes’).
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Central and South America The American Convention on Human Rights (‘ACHR’) includes a right to life.24 In Yakye Axa,25 this right was interpreted as requiring the state to take positive action to ensure the provision of 'medicine, food, clean water and sanitation'.26 EU Charter The Charter of Fundamental Rights of the European Union (‘EU Charter’) protects the right to health, which includes health services as well as the underlying determinants of health.27 In Poland, the Appellate Court held that the right to the protection of health under art 35 of the EU Charter is one of the forms in which the state protects the right to life.28 European Social Charter The European Social Charter is the ‘regional counterpart’ of the ICESCR and includes the right to the protection of health.29 In International Federation,30 the CESCR stated that '…legislation or practice which denies entitlement to medical assistance to foreign nationals, within the territory of a State Party… is contrary to the Charter'.31 The Right to Access Health Services Section 37(1) protects the right to access health services without discrimination.32 For the reasons outlined below, s 37(1) is likely to be construed more narrowly than a more general right to health or a right to life as contained in international instruments. Meaning of ‘Health’ and Overlap with the Right to Life Section 37 could arguably encompass a right to both ‘health’ and ‘health services’, as the right to health services is derivative of the right to health. Indeed, access to health services is an integral part of the right to health.33 Section 37 is based on art 12 of the ICESCR,34 which recognises ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.35 According to the CESCR, the right to health contains four interrelated elements: availability, accessibility, acceptability and quality.36 However, the Explanatory Memorandum to the HRA indicates that s 37(1) is narrower than art 12 of the ICESCR and is not intended to encompass rights in relation to provision of the ‘underlying determinants of health’, such as food, water, social security, housing, clean environments37 and insurance.38 This qualification therefore narrows the scope of s 37, which will not encompass a more general right to health or ‘underlying health determinants’.39
24 American Convention on Human Rights (n 11) art 4. 25 Yakye Axa Indigenous Community v Paraguay (Merits) (Inter-American Court of Human Rights Series C No 125, 17 June 2005) (‘Yakye Axa Indigenous Community’). 26 Steven Keener and Javier Vasquez, ‘A Life Worth Living: Enforcement of the Right to Health through the Right to Life in the Inter- American Court of Human Rights’ Columbia Human Rights Law Review 40 (2009) 595, 611. 27 EU Charter (n 11) art 35; Poland: Appellate Court in Wroclaw / I Aca 1337/11 (19 January 2012). 28 Poland: Appellate Court in Wroclaw / I Aca 1337/11 (19 January 2012). 29 European Social Charter (n 11) art 11. 30 International Federation of Human Rights Leagues (FIDH) v France, Complaint No 13/2003 (Merits) (ECSR, 8 September 2004). 31 Ibid 30–31. 32 HRA (n 1) s 37(1). 33 Committee on Economic, Social and Cultural Rights (n 14) [12]. 34 Explanatory Notes, Human Rights Bill 2018 (Qld) 3 (‘Explanatory Notes’). 35 ICESCR Rights (n 11) art 12. See also Universal Declaration of Human Rights (n 11) art 25. 36 United Nations Human Rights Office of the High Commissioner, Toolkit on the Right to Health (Web Page, 2019)
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It is worth noting that the HRA also contains a right to life.40 The right to life has been used in international jurisdictions to assert a right to health.41 However, complaints concerning the provision of health services in Queensland would likely not fall under s 16 of the HRA. South African jurisprudence indicates that the right to life should not be used as a vehicle of complaint where the right to health services deals specifically with the issue.42 Similarly, given the presence of s 16, courts are unlikely to interpret s 37 in a broad manner such that it encompasses a right to life, a right to health or a right to the ‘underlying health determinants’. Meaning of ‘Health Services’ While ‘health’ may be construed narrowly, ‘health services’ has the potential for a broad application. In addition to reproductive healthcare,43 which is explicitly included in the South African right,44 ‘health services’ under the HRA are likely to encompass trained healthcare professionals, hospitals, community health facilities, treatments, medication and equipment.45 Access to traditional medicine46 and gender transitioning treatment47 will likely also be caught under s 37(1). Section 37 does not merely provide a right to health services, but to health services that are medically appropriate and of good quality.48 Quality of health services encompasses the services themselves as well as the means of delivery; therefore, s 37 protects patients’ rights to privacy and confidentiality,49 to be treated with respect,50 and to only be provided treatment in accordance with their fully informed consent.51 With 18.3% of Queenslanders living with a disability,52 much of this group is at high-risk of receiving treatment without giving valid consent due to their perceived inability to understand information and communicate their wishes to practitioners.53 As a result, people with a disability, mental illnesses, non- English speakers and people with other communication barriers are more likely than the general population to be detained and forcibly medicated.54 If patients are unable to understand the presented health information, the health service is under an obligation to provide assistance to allow the patient to understand.55 Meaning of ‘Access’ The main issues arising under s 37 are likely to relate to patients’ ability to access health services. Indeed, the UN Human Rights Committee has stated that ‘access to medicine is one of the fundamental elements in achieving… the highest attainable standard of… health.’56 Both physical access and financial access are relevant to the right to access health services under s 37. Queensland’s unique geographic context and health landscape mean that accessing health services can be difficult in regional, rural or remote areas, when a treatment is ‘unavailable’, or when patients lack financial
40 HRA (n 1) s 16. 41 See, eg, Eldridge (n 21) 4; Oyal (n 23) [54]; Lopes de Sousa Fernandes (n 23) [39]; Yakye Axa Indigenous Community (n 25). 42 Soobramoney v Minister of Health (Kwazulu-Natal) (1) SA 765 (CC) [15] (‘Soobramoney’). 43 Castles v Secretary of the Department of Justice [2010] VSC 181 (Emerton J). 44 South African Constitution (n 10) s 27(1)(a). 45 Queensland Government, Department of Health Annual Report 2017-2018 (State of Queensland, 2018) 21. 46 Committee on Economic, Social and Cultural Rights (n 14) 18. 47 Attorney-General (Qld) v Anderson [2018] QSC 166; Makini Chisolm-Straker et al, ‘Transgender and Gender-Nonconforming Patients in the Emergency Department: What Physicians Know, Think, and Do’ (2018) 71(2) Annals of Emergency Medicine 183. 48 Australian Commission on Safety and Quality in Health Care, Australian Charter of Healthcare Rights (Australian Government, 2nd ed, 2019). 49 Ibid. 50 Ibid. 51 Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (‘In Re Marion’); Australian Commission on Safety and Quality in Health Care (n 48). 52 Health, Communities, Disability Services and Domestic and Family Violence Prevention Committee, Parliament of Queensland, Inquiry into Aged Care, End-of-Life and Palliative Care and Voluntary Assisted Dying (Paper No 3, February 2019) 4. 53 The Right to Health: Fact Sheet No 31 (n 13) 17. 54 Ibid 16; Tamar Ezer, ‘Making Laws Work for Patients’, Open Society Foundations (Web Page, 16 May 2013)
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resources.57 While the common law standard of care owed to patients does not differ based on treatment in the ‘city’ or ‘country’,58 s 37(1) may impose an obligation to provide adequate healthcare in non-metropolitan areas.59 South African jurisprudence suggests that where a health service is not offered in an area, and facilities exist in the area but are not being utilised, the government is under an obligation to make the facilities operational.60 Furthermore, the Government may be under an implicit obligation to ‘progressively realise’ the right to access health services by taking steps to expand facilities and services.61 This would help to address the inequalities faced by non-metropolitan Queenslanders, particularly in relation to access to chemotherapy, dental services, mental health services62 and services for victims of sexual assault.63 However, the public entities may be able to escape obligations to provide health services under s 37 by pointing to budgetary constraints. As resource allocation is a matter for the health service itself, health services have the discretion to limit the number of people who can access a specific treatment to optimise the advantage to the maximum number of patients.64 Thus, if providing additional services would come at an unreasonable cost, the health service is not obliged to provide the service.65 Notably, the ‘resourcing’ argument could also be used to re-allocate resources where a disproportionate share of the budget was assigned to a minor need, thus neglecting health needs more broadly.66 Section 37(1) indicates that people who cannot afford treatment may have a right to have health services subsidised by the Queensland Government, additional to the Medicare system. In South Africa, having a right to health services does not automatically entitle a person to treatment at the State’s expense. Rather, it requires the State to ‘devise and implement within its available resources a comprehensive and co-ordinated programme progressively to realise the right’.67 However, the State cannot merely declare that providing financial assistance would ‘impose an impermissibly high financial burden’; instead it must provide ‘clear evidence’ to demonstrate the unaffordability of any proposed program.68 Whilst Canadian courts suggest that the State does not have an obligation to provide financial assistance to refugees,69 the HRA makes it clear that the s 37(1) right is for ‘all individuals in Queensland’.70 Therefore, whilst the right under s 37(1) could be used to make health services accessible to people at all economic levels of society,71 the Queensland Government may rely on budgetary constraints to escape this obligation.
57 Claire E Brolan et al, ‘A Potential Human Rights Act in Queensland and Inclusion of the Right to Health’ (2018) 42(2) Australian and New Zealand Journal of Public Health 120, 120. 58 Geissman v O’Keef and Another, unreported, Supreme Court of New South Wales, 25 November 1994 (Simpson J). 59 Office of the United Nations High Commissioner for Rights and the World Health Organisation (n 13) 27. 60 Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) [80], [135]. 61 Ibid [95]. 62 Standing Council on Health, National Strategic Framework for Rural and Remote Health (Australian Government Department of Health, 2016) 13. 63 Minister for Health and Minister for Ambulance Services, ‘“Just in Case” Rape Kits to Lessen Burden on Victims of Sexual Assault’ (Media Release, 28 June 2019); Felicity Caldwell and Lydia Lynch, ‘Victims to be Offered Rape Kits before Deciding on Police Complaint’, Brisbane Times (online at 11 February 2019)
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Meaning of ‘Without Discrimination’ Section 37(1) prohibits discrimination in access to health services. This will include the discriminatory factors in the Anti-Discrimination Act 1991 (Qld);72 namely, sex,73 age,74 race,75 impairment,76 religious belief,77 gender identity78 and sexuality.79 Discrimination on the basis of ‘choice’ (such as being a drug user) 80 or ‘status’ (like being HIV-positive) is also likely to be unlawful under s 37(1).81 The right is also particularly relevant to people who are incarcerated82 or those in aged care or assisted living homes,83 who should not be delayed in accessing health services. The Right not to be Refused Medical Treatment Under s 37(2), a person must not be refused medical treatment that is ‘immediately necessary’ to save the person’s life or to prevent ‘serious impairment’ to the person.84 This reflects common law obligations on health workers to assist in emergency situations.85 The South African Constitution contains a similar right providing that ‘no one may be refused emergency medical treatment’.86 The scope of the South African right was considered in Soobramoney v Minister of Health (Kwazulu-Natal).87 This case concerned a patient with chronic and irreversible renal failure who was seeking to prolong his life through regular dialysis. The hospital was a provincial health department with a limited number of dialysis machines. It refused to admit the patient to the renal dialysis program, instead prioritising patients with acute and treatable renal failure. The South African Constitutional Court held that the constitutional right to emergency medical treatment did not support the ongoing treatment of chronic illness for the purpose of prolonging life.88 Chaskalson P noted that the ordinary meaning of ‘emergency medical treatment’ did not extend to ongoing treatment for chronic illness, and an intention to create a broader definition would have been expressed in positive and specific terms.89 The Court highlighted that the purpose of the right is to ensure that bureaucratic requirements do not frustrate the provision of emergency treatment.90 The judgment also emphasised that courts should be ‘slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters’.91
72 Anti-Discrimination Act 1991 (Qld). See also International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) art 5(iv); International Convention on the Rights of Persons with Disabilities (n 11) art 25; International Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) art 12, 14(b). 73 Anti-Discrimination Act 1991 (Qld) s 7(a) (‘ADA (Qld)’) 74 Ibid s 7(f). 75 Ibid s 7(g). 76 Ibid s 7(h). 77 Ibid s 7(i); Mallet v Schulman [1990] 67 DLR 4 231; Sharin Qumsieh v The Guardianship and Administration Board and Lance Pilgrim [1998] VSCA 45; Burwell v Hobby Lobby Stores Inc, 134 S Ct 2751 (2014). 78 ADA (Qld) (n 73) s 7(m). 79 Ibid s 7(n). 80 Australian Commission on Safety and Quality in Health Care (n 48). 81 Section 27 Law Centre, ‘The Constitution and Bill of Rights’ (Article) 23
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It appears likely that s 37 of the HRA was drafted to capture the definition of emergency adopted by the Constitutional Court of South Africa in Soobramoney.92 Arguably, the right to treatment that is necessary to ‘prevent serious impairment’ could include a right to treatment of chronic illnesses to prolong life. However, it appears more likely that s 37 was drafted to provide a narrow definition of emergency treatment, in contrast to the South African Constitution, which leaves the definition of emergency treatment open to interpretation.93 In Soobramoney,94 Chaskalson P acknowledged that rights legislation often calls for a generous interpretation, consistent with the principle of legality.95 Therefore, it appears that s 37 was drafted to prevent the possibility of a broader interpretation encompassing treatment of chronic illness. This interpretation is also supported by the fact that the term ‘serious impairment’ is qualified by the requirement that treatment must be ‘immediately necessary’.96 As such, s 37 crystallises the approach taken by the South African Court, ensuring that the right does not extend to ‘ongoing states of affairs’ such as chronic illnesses.97 Limitations on Section 37 Rights The ECtHR has generally been reluctant to find human rights violations. In Osman,98 the court held that art 2 of the ECHR did not confer a right to treatment and the state merely owed a duty to take adequate steps.99 Domestic courts in the UK have also displayed an unwillingness to usurp the role of the medical profession in making decisions regarding the allocation of treatment and resources100 for fear of ‘straying far from the sphere which under [their] constitution is accorded to [them].’101 The Constitutional Court of South Africa expressed similar sentiments in Soobramoney.102 Even in cases where medical negligence is established, the ECtHR has found a substantive violation of article 2 only if the relevant regulatory framework failed to ensure proper protection of the patient’s life.103 Queensland courts’ ability to give effect to human rights through statutory construction is limited by:104 the requirement to give effect to Parliament’s ‘intention’,105 the presumption of consistency with international law, the requirement to adhere to an ‘unambiguously expressed’ meaning106 and the presumption that statutes do not intend to breach constitutional limits.107 Indeed, s 37 rights are not absolute, and can be limited if it is reasonable and ‘demonstrably justifiable’ to do so.108 Therefore, it is likely that Queensland decision-makers may follow the conservative approach of foreign courts in interpreting and applying the right to health services under s 37. Instances where the right is most likely to be limited are considered below. Violent Patients Health workers are often exposed to violent patients exhibiting life-threating conditions,109 for example, crystal methamphetamine users.110 The HRA is intended to operate alongside existing legislation, and the rights contained therein are not absolutely protected.111 For example, security officers have the power to deal with persons causing a public nuisance under ss 182 and 183 of the Hospital and Health Boards Act 2011
92 Soobramoney (n 42). 93 South African Constitution (n 10) s 27(3). 94 Soobramoney (n 42). 95 Ibid [17]. 96 HRA (n 1) s 37(2). 97 Soobramoney (n 42) [21]. 98 Osman v United Kingdom [1998] ECRR 101. 99 Haggett (n 22) 21. 100 Ibid. 101 R v Cambridge Health Authority, ex parte B [1995] WLR 898, 904. 102 Soobramoney (n 42) [29]. 103 Lopes de Sousa Fernandes (n 23) [42]. 104 George Williams and David Hume, Human Rights Under the Australian Constitution (Oxford University Press, 2nd ed, 2013) 35. 105 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 384. 106 Momcilovic v The Queen (2011) 245 CLR 1 (Crennan and Kiefel JJ). 107 Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629. 108 HRA (n 1) s 8(b). 109 Legal Affairs and Community Safety Committee (n 39) 58; Queensland Nurses and Midwives’ Union, Submission No 31 to Legal Affairs and Community Safety Committee, Human Rights Bill 2018 (23 November 2018) 5. 110 Legal Affairs and Community Safety Committee (n 39) 58; Queensland Nurses and Midwives’ Union (n 107) 5. 111 HRA (n 1) ss 13, 58(2).
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(Qld). This power exists alongside the obligations in the HRA, providing an extra set of factors for consideration in exercising this discretion.112 If the patient is threatening the safety of other patients, staff or visitors, it may be reasonable to exclude them for aggressive conduct,113 unless it is an emergency. However, a patient should not be refused treatment, or be prematurely discharged, merely because of rudeness114 or lateness to appointments.115 Scope of Practice A health service may be able to refuse treatment if the requested treatment is not within its scope of practice. In an emergency, this is likely to require the health service to refer and transfer the patient to a service that can provide treatment.116 Necessity and Prioritising Patients Where there is no emergency, or the service is not medically required, the health service is not obliged to fulfil a patient’s request. For example, patients seeking opioids with no clinical indication can be refused treatment.117 Patients may also have treatments validly delayed or refused if it is necessary to prioritise other patients on the basis of urgency.118 Section 37(2) would also allow for the needs of patients to be prioritised in more extreme cases, even those leading to loss of life. For example, the separation of conjoined twins in an emergency, which would result in the death of one twin, would likely be permitted to save the life of the other twin.119 Additionally, s 37 would not affect the legality of medical treatment terminating a pregnancy.120 Religious Belief While the right to health services may be limited in some of the above instances, s 37(2) will not permit healthcare workers to refuse to perform a procedure based on their religious beliefs or morals,121 such as refusing to prescribe contraceptive pills. Conciliated Outcomes Under the HRA, the Queensland Human Rights Commission can receive and conciliate human rights complaints, or refer the matter to another agency for investigation, such as the Office of the Health Ombudsman.122 The conciliated outcomes that complainants might seek when making a complaint under section 37 include: • Listening to the complaint;123 • Issuing an explanation or apology;124 • Paying compensation (extending to out-of-pocket expenses, corrective treatment costs, or a refund);125
112 See also Queensland Health Guideline, Management of Patients with Acute Sever Behavioural Disturbance in Emergency Departments, < https://www.health.qld.gov.au/__data/assets/pdf_file/0031/629491/qh-gdl-438.pdf>. 113 Legal Affairs and Community Safety Committee (n 39) 58; Queensland Nurses and Midwives’ Union (n 107) 4. 114 Australian Commission on Safety and Quality in Health Care (n 48). 115 Ibid. 116 Ibid; Shane Evans, Megan Fairweather, Anna-Maria Lofaro, ‘A Right to Access Health Services: Implications for Public Health’, MinterEllison (Web Page, 12 March 2019)
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• Providing education and training for staff, for example training relating to anti-discrimination policies, prioritising patients, delivering quality health services, or dealing with violent patients;126
• Developing decision-making support tools to assist health workers to properly balance human rights, including balancing competing needs, appropriately prioritising patients or dealing with violent patients; 127 • Revising internal complaints management processes to manage human rights complaints, including complaints about discriminatory treatment, the provision of poor quality services, failure to provide services, or failure to consider relevant factors when prioritising patients;128 • Revising policies, procedures and patient information documentation;129 • Referring the provider to the relevant registration board;130 • Declaring that a decision contravenes the HRA and directing that the entity act in a manner consistent with the right;
• Directing the complainant’s transfer to another hospital or health service; • Removing an exclusion in an insurance policy; and • Providing the complainant with previously denied medical treatment.131
126 Ibid. 127 Ibid. 128 Ibid. 129 Ibid. 130 Ibid. 131 See, eg, Castles v Secretary to the Department of Justice [2010] VSC 310.
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Contact details
Prof Tamara Walsh T +61 7 3365 6192 E [email protected] W uq.edu.au
CRICOS Provider Number 00025B
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