Local governments throughout Queensland will be aware of the potential impacts of the Human Rights Act 2019 (“the Act”) on Council decision-making.
The recent Land Court of Queensland proceeding of Waratah Coal Pty Ltd v Youth Verdict Ltd (“the objectors”) provides some further clarity as to what a Court might call for when considering human rights objection pursuant to the Act.
The case considered section 58 of the Act, which provides:
- It is unlawful for a public entity –
- To act or make a decision in a way that is not compatible with human rights; or
- In making a decision, to fail to give proper consideration to a human right relevant to the decision.
Waratah Coal gives an insight into how courts are likely to consider objections made under the Act at a procedural stage. In giving this insight, it offers an indication of the material that Courts are likely to require when upholding (or otherwise) a human rights-based objection to decision-making processes.
The case is an interim step in an overall objection to a mining project in the Galilee Basin, on human rights grounds. The particular human rights that the objector is relying upon to advance their objections are:
- recognition and equality before the law;
- right to life;
- property rights;
- the right not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with;
- the right of every child, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child; and
- the cultural rights of Aboriginal peoples and Torres Strait Islander peoples.
The case itself is largely about the timing for which the objector is required to provide particulars of their objection to “sharpen the issues”.
At this stage of the proceeding, the parties agreed that lay evidence (ie, non-expert evidence), and statements from First Nations people, will be filed first, with expert evidence to follow. The Court considered that the need for and type of expert evidence required would be informed by the evidence to be provided at this stage of the process.
The Court also considered a five-step process that the Department of Environment and Science (a statutory party to the proceeding) had adopted in the context of considering human rights issues:
- STEP ONE: Engagement – Section 58(1)(a)
This step considers whether the prospective decision is relevant to a human right.
- STEP TWO: Limitation – Section 58(1)(a)
This step considers if a right is relevant, is that right limited by the decision?
- STEP THREE: Justification – Section 13
This step considers whether such limits as do exist are reasonable and can be demonstrably justified. This step can be broken up in the following overlapping requirements:
- Legality – this encompasses both procedure and substance. Any limitation must be in accordance with the procedure prescribed by law and compatible with the rule of law; and
- Proportionality – human rights, not being absolute, must be balanced against one another and against other competing private and public interests. There may be a need to limit those rights to achieve other legitimate purposes.
- STEP FOUR: Proper Consideration – Section 58(1)(b)
This step considers even if the limits be lawful and proportionate, the decision made must give property consideration to the rights said to be engaged.
- STEP FIVE: Inevitable Infringement – Section 58(2)
This step operates where the Court could not reasonably act differently or make a different decision because of a statutory provision or under law.
Adopting a structured process for considering the impact on human rights on decision-making is an important tool for local governments. DES’ five step process may be a useful model for Councils to consider when developing their own structure.
Waratah Coal offers further insight into an area of law that is rapidly developing in Queensland.
The case underscores the need for local governments to develop their own process for dealing with human rights in decision-making.
The case also emphasises that litigation about human rights objections will be a costly and time-consuming process for public entities.
For those Councils seeking further advice on how to deal with human rights-based complaints, or ensure that human rights matters are properly considered in local government decision-making, please contact Julian Bodenmann.