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What does the Queensland Human Rights Act 2019 add to an administrative law challenge?

Human Rights

When challenging a government decision under traditional administrative law, you are generally restricted to technical procedural arguments: did the decision maker follow the exact wording of the legislation? Did they deny you natural justice? Did they fail to consider a mandatory factor?

However, since the passing of the Human Rights Act 2019 (Qld) (the Act)1, Queenslanders have access to a powerful, modern legal lever. The Act forces public entities to place human dignity and individual rights at the center of their decision making process.

If a department or council fails to consider your protected human rights when making a decision, the decision itself may be deemed unlawful. This adds a critical second arrow to your quiver in any administrative law dispute.

The Core Obligation: Section 58

The operational heart of the Act is Section 58, which imposes a strict, two-limbed statutory obligation on all Queensland public entities. Under section 58(1)2, it is unlawful for a public entity:

  1. The Substantive Limb: To act or make a decision in a way that is not compatible with human rights; or
  2. The Procedural Limb: To fail to genuinely consider relevant human rights when making a decision.

This obligation means a government officer cannot simply treat decision making as a mechanical box ticking exercise. They must actively identify which human rights are engaged by their proposed decision, weigh the impact of the decision on those rights, and ensure that any limitation of rights is reasonable and demonstrably justified in a free and democratic society under section 13.

What is a “Public Entity”?

The Act’s obligations apply only to public entities. This includes:

  • Queensland state government departments and Ministers;
  • Local councils, such as the Gold Coast City Council;
  • Public servants, police officers, and municipal workers;
  • Public health services and public schools;
  • Private organisations that are performing a public function on behalf of the state, such as private prison operators or community housing providers.

Crucially, the Act does not apply to private individuals, private developers, or federal government agencies.

How is a Limitation Justified? The Section 13 Test

Under section 13 of the Act, human rights are not absolute. They can be limited, but only if the limitation is reasonable and demonstrably justified.

To determine if a limitation is lawful, the decision maker must apply the Section 13 Proportionality Test, which weighs the following factors:

  • The nature of the human right being limited;
  • The purpose of the limitation, including whether it is to achieve a necessary or urgent social goal;
  • The relationship between the limitation and its purpose, ensuring that the limitation is actually capable of achieving the goal;
  • Whether there are less restrictive and reasonably available ways to achieve the same purpose;
  • The balance between the importance of the purpose and the degree of harm caused to the human right.

If the government department fails to carry out this detailed balancing test, they have breached the procedural limb of section 58, rendering their decision unlawful.

Key Protected Rights in Planning and Environmental Law

The Act protects 23 fundamental human rights. In administrative law challenges involving planning, local development, and environmental disputes on the Gold Coast, several rights are frequently engaged:

1. Cultural Rights for Aboriginal and Torres Strait Islander Peoples (s 28)

This is one of the most powerful provisions in the Act. Section 283 protects the distinct cultural rights of Queensland’s traditional owners, guaranteeing their right to maintain their spiritual and material relationship with land, water, and heritage.

In cases like the proposed Springbrook Cableway, section 28 has significant weight. Because the Gondwana Rainforests hold deep cultural and spiritual value for the Yugambeh people, any state environment minister deciding to grant a Nature Conservation lease must demonstrate that they have genuinely considered and protected these cultural rights. The lack of traditional owner consent or the failure to engage in deep consultation represents a threshold legal defect, not merely a minor factor to be balanced.

2. Freedom of Expression (s 21)

Section 21 protects the right to seek, receive, and share information and ideas. This right is highly relevant to community campaign groups and public protests opposing local developments. It prevents councils or government departments from arbitrarily banning local leaflets, restricting peaceful protest assemblies, or suppressing community discussion.

3. The Right to Privacy and Reputation (s 25)

Section 25 protects individuals from unlawful or arbitrary interference with their private life, family, home, or correspondence.

4. Property Rights (s 24)

Section 24 protects the right of individuals to own property and states that a person must not be arbitrarily deprived of their property. While this does not prevent lawful land acquisitions, it requires a high standard of justification and procedural fairness.

The Dispute Resolution Pathway: QHRC and s 59 “Piggybacking”

If you believe a Queensland public entity has violated your human rights in making an administrative decision, the Act provides two distinct pathways:

graph TD
    A[Public Entity Makes Decision] -->|Violates Human Rights s 58| B{Do you have another legal ground to sue?}
    B -->|No| C[Pathway 1: Lodge Complaint with QHRC]
    C --> D[Formal Conciliation Conference]
    B -->|Yes| E[Pathway 2: Piggyback Action in Supreme Court]
    E --> F[Supreme Court Judicial Review under s 59]
    F --> G[Court declares decision unlawful and sets it aside]

Pathway 1: Queensland Human Rights Commission (QHRC)

If you do not have a separate legal ground to sue in court, but believe your human rights have been ignored:

  1. You must first lodge a formal internal complaint with the public entity.
  2. If unresolved after 45 days, you can lodge a complaint with the QHRC (1300 130 670).
  3. The QHRC will assess the complaint. If accepted, they will conduct a formal conciliation conference to facilitate a resolution.
  4. The QHRC process is free and does not require a lawyer. However, the QHRC cannot make binding orders or award damages; they rely on conciliation and public reporting to force compliance.

Pathway 2: Supreme Court “Piggybacking” (s 59)

The Act does not create a standalone right to sue a public entity in court solely for a human rights breach. Instead, under section 59 of the Act4, you can piggyback a human rights claim onto an existing legal proceeding.

If you are already filing a Supreme Court judicial review to challenge a council’s planning approval on traditional administrative grounds, such as jurisdictional error, you can include a claim that the council breached section 58 by failing to consider your human rights. If the Supreme Court agrees, it can declare the decision unlawful and set it aside on that basis, providing a highly effective remedy.

📞 Challenging a state or local government decision? Ensuring that a public entity has fully complied with their Section 58 obligations is a highly technical legal task. Contact Bell & Senior Lawyers today on (07) 5532 8777 or contact us online to review your administrative challenge. Read more about our dispute and tribunal services on our Litigation & Dispute Resolution page.

  1. Human Rights Act 2019 (Qld) s 3. ↩︎

  2. Ibid s 58. ↩︎

  3. Ibid s 28. ↩︎

  4. Ibid s 59. ↩︎

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