Need To Consider Human Rights Highlighted By Recent Case

The critical need to consider the Human Rights Act 2019 (HRA) in government decision-making was highlighted by a recent decision of the Supreme Court of Queensland, in which State Government decision-making was found to be unlawful.

On 27 February 2024, the Supreme Court in Johnston & Ors v Carroll (Commissioner of the Queensland Police Service) & Anor [2024] QSC 2 determined that directions by the Queensland Police Service and Queensland Ambulance Service in relation to COVID-19 vaccination requirements were unlawful, because of a failure to give proper consideration to human rights as required under section 58 of the HRA.

Local governments will be familiar with their obligations under the HRA in the course of decision-making.  However, this recent guidance by the Court underscores key obligations where an act or decision of a public entity, including a local government, may impact human rights.  These obligations, which centre around section 58 of the HRA, can be split into the following two limbs:

1. Substantive obligations: ie, to make a decision in a way that is compatible with human rights: section 58(1)(a); and
2. Procedural obligations: ie, to give proper consideration to a relevant human right in making a decision: section 58(1)(b).

Substantive Limb

The phrase “compatible with human rights” is defined in section 8 of the HRA and involves a “two-stage” inquiry:

1. whether the relevant act or decision places a limit on a human right; and
2. if there is a limit, whether the limit is justified under the test of proportionality set out in section 13 (which includes, among other factors, the nature of the right, the nature of the purpose of the limitation, whether there are less restrictive ways, the importance of preserving the human right).

An act or decision will limit a human right if it “places limitations or restrictions on, or interferes with, the human rights of a person.” This inquiry involves considering the scope of the right of which should be “construed in the broadest possible way” by reference to the right’s “purpose and underlying values.”

In making decisions that may impact human rights, local governments should be very cautious when considering the scope of the right.

Procedural Limb

Under the second limb, Courts have determined that for a decision-maker to give ‘proper’ consideration to a relevant human right, they must:

1. understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision; and
2. seriously turn his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person; and
3. identify the countervailing interests or obligations; and
4. balance competing private and public interests as part of the exercise of justification.

Assessing Incompatibility

The case law indicates that when assessing incompatibility with human rights, the applicant for human rights relief only needs to establish “prima facie” incompatibility; that is, an appearance of incompatibility at first glance.

Once prima facie incompatibility is established, the burden of justifying the limitations caused by the action or decision falls on the public entity.

This burden is considered to be a high one and emphasises the need for government decision-makers to ensure these types of decisions are carefully reasoned and supported by evidence, having regard to the provisions of the HRA.

Compatability Assessments

In determining incompatibility, local governments, as public entities, should undertake a compatibility assessment whenever an act or decision may affect human rights. The Court in this case considered that a detailed assessment would:

1. address both requirements of section 58 (substantive and procedural limbs);
2. sufficiently demonstrate that proper consideration was given to the relevant human rights affected by the decision;
3. identify the human rights affected; and
4. consider whether the decision would be compatible with human rights.

The HRA is a relatively new law, which means that key Court decisions about how the HRA is to be applied will continue to emerge.

This recent decision of the Supreme Court has emphasised the importance of public entities affording proper consideration to human rights when making any decision that may affect these rights.

The Court has provided guidance about how public entities, including local governments, can discharge these obligations.

Preston Law provides local governments across Queensland with advice about the application of the HRA.  If you have any further queries about this blog, please contact our Government Team.