The Human Rights Act 2019 (Qld)

In 2019, the Queensland state government passed the Human Rights Act. This Act enshrines in law twenty-three human rights taken from the International Covenant on Civil and Political Rights. The Act enshrines this international law in Queensland law but also allows courts to consider relevant international law when making determinations.

The Act took effect on 1 January 2020. Complaints about breaches of the Act that occurred after that date can be made to the Queensland Human Rights Commission.

What does the Human Rights Act Achieve?

The Human Rights Act requires that the government acts to ensure certain rights are protected. This means that:

• When putting forward or considering whether to pass new laws, parliament must turn its mind to whether the laws protect these human rights;
• The judicial system must apply legislation in a way that is consistent with these human rights;
• Other public bodies, such as state educational institutions, state government departments, local councils within the state, the state police force and private organisations or businesses carrying out public functions, must protect these human rights.

In some instances, where it is justifiable and reasonable, human rights may be limited.

Which Human Rights are protected by the Human Rights Act?

The twenty-three human rights that are protected by the Human Rights Act are the following

Equality before the law

Under section 15 of the Human Rights Act, all people are entitled to be protected from discrimination and are entitled to the human rights outlined within the Human Rights Act without discrimination.

Right to life

Under section 16 of the Act, everyone has the right to life and the right not to have their life taken from them. Section 16 places a duty on the government to ensure it takes proper steps for ensuring that lives are protected;

Protection from torture, cruel, inhumane or degrading treatment

Section 17 provides that people must not be subjected to torture or cruel, humiliated, inhuman or degrading treatment. This section also considers the right of persons not to be subjected to medical treatment without their informed consent first being obtained;

Right to not be enslaved

Section 18 of the Act protects people from being forced to work as a slave. A person who another person completely controls is considered to be a slave.

Right to freedom of movement

Under section 19 of the Human Rights Act, people can freely move around within the state of Queensland and live where they want to. They can also remain within or leave the state of Queensland (so long as they are legally allowed within the state).

Freedom of religion, conscience and thought

Section 20 of the Human Rights Act ensures that people have the right to think and believe what they want. They can do this in private or public, with others or alone. This includes the right to practise religion alone or with others in public or private.

Freedom of expression

Under section 21 of the Human Rights Act, people have the right to think and say what they want to. They also have the right to receive and share ideas and information. This right can be limited where it impinges on the rights of others or where it is necessary to protect public order and safety.

Freedom to assemble with others

Section 22 of the Human Rights Act protects the rights of people to gather with others and have peaceful meetings.

Right to partake in public life

All people can vote or run for public office (provided they meet the age criteria). This right is protected by section 23 of the Human Rights Act.

Right to property

Under section 24, people are entitled not to have their property taken from them.

Right to privacy

People are entitled to keep their lives private unless the law requires them to disclose personal matters (section 25).

Rights of families and children to protection

Children and families have the right to be protected. Children may be entitled to extra protections than adults depending on what is in their best interests (section 26 Human Rights Act).

Rights to cultural background and practice

People are entitled to practice, declare and express their cultural background (section 27 Human Rights Act).

Aboriginal people and Torres Strait Islander people in Queensland have the right to practice their cultural beliefs and teaching, including using their indigenous languages, fostering kinship ties and continuing their relationships with the land, sea and water (section 28).

Right to freedom and security

Everyone has a right to physical safety and a right not to be arrested or detained unless such an arrest or detention is lawful (section 29).

Right to be treated humanely when detained

People who are detained have the right to be treated humanely (section 30);

Right to a fair trial or hearing

People who have criminal or civil charges brought against them have the right to a fair hearing by an independent, competent and impartial court or tribunal (section 31 Human Rights Act).

Rights during criminal proceedings

All people have the right to a minimum set of facilities and resources when charged with a criminal offence. This includes such things as having a sufficient amount of time to prepare for trial and access to Legal Aid if that person cannot afford a lawyer (section 32 Human Rights Act).

Rights of children during criminal proceedings

Under section 33 of the Human Rights Act, children charged with crimes have a specific set of rights. These include that they cannot be held in detention with adults and that they are entitled to opportunities for rehabilitation and education.

Right to not be tried more than once or punished more than once for the same crime

Under section 34 of the Human Rights Act, a person has the right to only be punished once. A person will not be penalised for a crime that a trial finds them not to have committed.

Right to not have criminal laws applied retrospectively

According to section 35 of the Human Rights Act, people cannot be punished for crimes that were not crimes at the time they committed them;

Right to receive an education

Under section 36 of the Human Rights Act, all children have the right to receive a primary and secondary school education. All adults are entitled to further vocational training according to their ability.

Right to receive healthcare

All people, under section 37 of the Human Rights Act, have the right to medical care, and no one can be refused medical care in an emergency.

Cases that have considered the Human Rights Act

In the first year where complaints against the Human Rights Act could be made, 2020, some of the decisions made, including the following:

Volkers v R [2020] QDC 25

In the 2020 matter of Volkers v R, an indictment was permanently stayed due to delay after considering the rights of a person accused of a crime. The rights considered included the right to a fair hearing.

R v Michell [2020] QDC 89

The District Court again considered an accused’s right to a trial without undue delay and found that the applicant should be tried by a judge alone rather than by a jury. This was because jury trials had been delayed due to the Covid 19 pandemic.

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