Human Rights Acts across Australia: implications and considerations for businesses

The growing importance of human rights legislation 15 min read

Just as privacy laws have been progressively expanding since the late 20th century, we're now witnessing the broadening scope of human rights reporting and due diligence obligations.

In this Insight, we summarise the key provisions of state and territory Human Rights Acts and consider when (and to whom) they apply. As these acts are now in force in the ACT, Victoria and Queensland, we also consider what a similar instrument could look like in other states and territories.

State human rights legislation recently made the headlines following a claim brought against the Queensland Commissioner of Police and the Director General of Queensland Health.¹ In that case, the Supreme Court of Queensland declared that directions issued by the Queensland Commissioner of Police requiring police officers to receive the COVID-19 vaccine were unlawful as they failed to give proper consideration to human rights. The court also declared that a similar direction made to ambulance service workers was unlawful and had no effect. It restrained the Commissioner and Director General from taking any steps regarding enforcement or disciplinary proceedings in relation to the direction.

We are likely to see many more such claims being brought in coming years and, as with privacy legislation, human rights acts may in time be amended to apply more generally to private companies.

Key takeaways

• More human rights legislation is coming. With Acts now in force in the ACT, Victoria and Queensland, governments of other states and territories, and potentially the Federal Government, are likely to follow.
• The legislation applies not only to public entities, but also to some private entities providing a public function. A function of public nature can include providing gas, electricity and water supply, public housing and public transport—the list is non-exhaustive and will likely expand.
• Private opt-in? Very few private entities have opted in so far, but there is a growing expectation that companies will adhere to stakeholder standards. The first few companies to opt in may be seen as industry leaders.
• More human rights disputes. As different types of entities with diverse functions opt in, disputes will emerge concerning different aspects of human rights. The legal, financial and reputational risks for companies will only grow as human rights reporting and due diligence requirements expand.

Human Rights Acts in QLD, VIC and the ACT

Australia has no comprehensive fundamental human rights instrument at the federal level, such as a Charter or Bill of Rights. Some human rights are found in, or implied from, the Constitution, federal legislation and common law. Consequently, human rights are protected in an incomprehensive and patchwork manner. This led to the Attorney-General, the Hon Mark Dreyfus KC MP, asking the Parliamentary Joint Committee on Human Rights (the PJCHR) to conduct an enquiry into Australia's human rights framework and provide a report to Parliament by 31 March 2024. In the interim, companies should continue to consider what state and territory Human Rights Acts mean for them.

The Australian Capital Territory, Victorian and Queensland Governments have introduced very similar Human Rights Acts, being the:

• Human Rights Act 2004 (ACT) (the ACT Act);
• Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Vic Act); and
• Human Rights Act 2019 (QLD) (the QLD Act).

The rights protected under these Acts are largely drawn from the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, two multilateral covenants that Australia ratified in 1980 and 1975, respectively. As shown in Table 1, all three Acts mostly protect the same human rights.

Bringing a cause of action

One area that distinguishes the existing Human Rights Acts across Australia is whether, and if so how, each Act enables a person to bring a cause of action for a contravention of the Act. The ACT Act enables a person to commence proceedings in the Supreme Court against a public authority for an alleged contravention of the Act in its own right, independently of any other cause of action.²

This can be contrasted with the Vic Act and QLD Act, which do not create a right to bring legal action solely for a breach of human rights. The Vic Act and QLD Act allow human rights in legal proceedings only in conjunction with another cause of action;³ the claim must be 'piggy-backed' onto an existing primary cause of action. An example of this can be found in the recent proceedings brought against the Commissioner of the Queensland Police Service (the QPS).⁴ In that case, the plaintiffs in each of the proceedings against the Commissioner sought judicial review of the directions made by the Commissioner in relation to the COVID-19 vaccination mandates for QLD police, claiming they were affected by errors of law under the Judicial Review Act 1991 (Qld), or alternatively, were unlawful under ss58 or 59 of the QLD Act (the 'piggy-backed' cause of action). The claim under the Judicial Review Act failed, but the claim under ss58 or 59 of the QLD Act was successful and the Commissioner's directions were declared unlawful.

A cause of action under the Vic Act or QLD Act that has been 'piggybacked' onto the primary cause of action does not fail merely because the primary cause of action was unsuccessful, as was the case with the proceedings brought against the QPS Commissioner.

However, none of the ACT Act, Vic Act or QLD Act entitles the person to damages on the ground of unlawfulness of an act or decision due to its incompatibility with, or lack of proper consideration of, human rights.⁵ Therefore, a person may seek relief or remedy on a ground of unlawfulness which includes an injunction, a stay of proceedings, a declaration of unlawfulness, but not damages. In the recent proceedings brought against the QPS Commissioner, his Honour stated a 'finding of unlawfulness (coupled with an appropriate injunction) will have the same practical effect as a finding of invalidity'.⁶

In the absence of provisions that allow a standalone cause of action to sue for damages, the primary role of these instruments is to ensure public authorities act consistently with the human rights protected under them. The secondary role of these instruments is to promote transparency about compliance with human rights, eg by publishing a statement of compatibility when introducing bills to Parliament. It is a requirement that federal rule-makers lodge an explanatory statement, which includes a statement of compatibility with human rights, when they register a legislative instrument for consideration by Parliament.⁷ Further, they vest a power in the judiciary to declare that legislation is incompatible with the relevant state Human Rights Act.⁸

An Act for NSW and other states soon?

NSW remains the lone state or territory on Australia's east coast to have not implemented a Human Rights Act. The issue of a NSW Bill of Rights was referred to the Standing Committee on Law and Justice in 1999. The Committee concluded that it was against the public interest, citing the risk of politicisation of the judiciary, undermining parliamentary supremacy and a lack of consensus on which rights to protect.⁹ A human rights Bill has been introduced by private members in the NSW Legislative Assembly on four occasions between 2005 and 2010. Each time the Bill lapsed or was withdrawn.

However, similarly to former Queensland Premier Annastacia Palaszczuk in 2017, NSW Premier Chris Minns took the idea of a Human Rights Act to the last state election, a stance endorsed at the 2022 NSW Labor Conference.¹⁰ After winning re-election in 2018, the Palaszczuk Government moved quickly to introduce the QLD Act by 2019. The Minns Government, however, instead referred the Anti Discrimination Act 1977 (NSW) to the NSW Law Reform Commission on 20 July 2023. The terms of reference included consideration of 'the protections, processes and enforcement mechanisms that exist in other Australian and international anti-discrimination and human rights laws, and other NSW laws'. A four-year term gives the Minns Government ample time to introduce a Human Rights Act.

In Tasmania, a 2007 inquiry¹¹ recommended a Human Rights Act be immediately implemented. In 2022, a motion was introduced on the floor of the Tasmanian Legislative Council to progress a Human Rights Act, however nothing has been actioned by the Tasmanian Government since.¹²

In South Australia, the Charter of Human Rights and Responsibilities Bill 2020 lapsed without a second reading speech, and in Western Australia in 2007 a draft Human Rights Bill was distributed for public consultation,¹³ without further consideration.

At a federal level in 2023, the PJCHR started reviewing the scope and effectiveness of Australia's 2010 Human Rights Framework and the National Human Rights Action Plan. The PJCHR was also asked to consider recent developments in Australian human rights law and case law.¹⁴ This involved public hearings and submissions in relation to a federal Human Rights Act, existing mechanisms to protect human rights and the effectiveness of state and territory Acts. The Australian Human Rights Commission reported that 92% of published submissions supported a federal Human Rights Act.¹⁵ Executive support, however, dates as far back as the 2009 recommendation of the National Human Rights Consultation Committee, commissioned by the then-Rudd Government, to adopt a federal Human Rights Act.¹⁶ The PJCHR will provide a report to Parliament by 31 March 2024.

Who is bound by Human Rights Acts?

Three types of entities (the Relevant Entities) have obligations under the state and territory Human Rights Acts:

• public authorities;
• entities, whose functions are or include functions of a public nature, when exercising those functions for the state/territory or a public authority; and
• other entities that ask the Minister, in writing, to declare that the entity is subject to the obligations of a public authority.¹⁷

For these Relevant Entities, it is unlawful 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.¹⁸ However, this rule does not apply:

• in the ACT, if the act is done or the decision is made under a territory or federal law and:
  • the law expressly requires the act to be done or decision to be made in a particular way that is inconsistent with a human right; or
  • the law cannot be interpreted in a way that is consistent with a human right; and
• in Victoria and Queensland if, as a result of a state or federal law, the public authority could not reasonably have acted differently or made a different decision.

What are public authorities?

Public authorities include public service employees, state police services, local governments, ministers and statutory entities.¹⁹ Public authorities do not include the Parliament (in Victoria),²⁰ Legislative Assembly (in Victoria and Queensland),²¹ or a court or tribunal (except for when they are acting in an administrative capacity).²²

What is a function of a public nature?

A function of public nature can include providing:²³

• gas, electricity and water supply
• emergency services
• public health services
• public education
• public transport
• public housing.

However, this is a non-exhaustive list and, in deciding whether other functions are considered to be of a public nature, the following matters may be considered:²⁴

• whether the function is conferred on the entity under a state or territory law;
• whether the function is connected to, or generally identified with functions of, government;
• whether the function is of a regulatory nature;
• whether the entity is publicly funded to perform the function; and
• whether the entity performing the function is a company (within the meaning of the Corporations Act) in which all (or the majority) of the shares are held by, or for, the state or territory.

For example, a private company funded to run a prison, or an NGO providing a public housing service, would be considered a functional public entity.²⁵ However, a non-government school educating students may be exercising functions of a public nature but, as it is not doing so on behalf of the state, it is not a public authority for the purposes of this Charter.²⁶

Acting compatibly with human rights

Generally, an act or decision made by a public entity will be compatible with human rights if it does not limit a human right, or it limits a human right only to the extent that it is reasonable and demonstrably justified.²⁷ Consequently, every act, policy or decision made by a public entity must be assessed for compatibility with these rights. At a minimum, this involves the following three steps:²⁸

1. Identify which rights protected under the Acts may be impacted.
2. Determine if the act or decision limits those rights. If no rights are limited, the act or decision is compatible with human rights. If any rights are impacted, step 3 must be considered.
3. Determine whether the limit is reasonable and justified by reference to the following factors:
   1. Is there a law or regulation that allows you to limit a person's rights?
   2. Does limiting those rights achieve a legitimate purpose?
   3. Is it necessary to limit the rights to achieve that legitimate purpose?
   4. Do the benefits of the act or decision outweigh the harm caused by the limitation?

If the answers to the above questions are yes, the act or decision is likely to be compatible with human rights.

Risks and liabilities

To date, all cases involving state-based Human Rights Acts in Australia have been brought against public authorities. In all states, the overwhelming majority of cases have related to the detention of prisoners, criminals or suspected criminals. The rights alleged to have been violated typically include the right:

• not to be treated or punished in a cruel, inhuman or degrading way;
• of liberty and security of person and to not be arbitrarily detained;
• to humane treatment when deprived of liberty;
• to a fair trial before an independent tribunal; and
• for Aboriginal and Torres Strait Islander peoples to maintain their distinct cultural rights.

Other cases related to procedural decision-making, including where various decisions made by public authorities are challenged on the basis that they did not properly consider human rights impacted by their decision. In Queensland, these include:

• challenges to the decision to reject a development application that allegedly breached the applicant's right to a fair hearing, the right to participate in public life without discrimination, or their right to property;²⁹ and
• challenges to the decision not to postpone an election despite health risks presented to voters in the midst of the COVID-19 pandemic, because it allegedly breached the voters' right to participate in public life.³⁰

Finally, courts have only ruled that legislation was incompatible with the relevant Human Rights Act on two occasions: the ACT Supreme Court in relation to the presumption against bail under the Bail Act 1992 (ACT)³¹ and the Victorian Court of Appeal in relation to the burden of disproving drug possession being on the defendant under the Drugs, Poison and Controlled Substances Act 1981 (Vic).³²

Australian National Contact Point

Notably, the Australian National Contact Point for Responsible Business Conduct (AusNCP) is responsible for promoting the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (the OECD Guidelines), which includes human rights. Governments adhering to the OECD Guidelines are required to set up National Contact Points (NCPs) whose main role is to further the effectiveness of the Guidelines, eg by resolving disputes that arise from the alleged non-observance of the guidelines by multi-national enterprises. As explained in one of our recent Insights, the non-judicial NCP is an affordable and accessible recourse that can propose (but not impose) outcomes. There are numerous complaints to the AusNCP against companies traversing the security, banking and mining sectors, many of which are currently on foot. We observed the role of the AusNCP amidst the energy transition and complaint against ElectraNet in another recent Insight.

Future focus

The growth of human rights legislation and regulation in Australia continues to increase the legal, financial and reputational risks for companies, particularly as:

• more non-public entities may choose to be bound by Human Rights Acts; and
• other states and territories may introduce Human Rights Acts that will impose human rights obligations on more public entities.

Consequently, it is imperative that companies have robust human rights compliance frameworks and policies.

As different types of entities with diverse functions opt in, disputes will emerge concerning different aspects of human rights. As explained in our previous Insight, we consider bluewashing to be the new frontier in ESG risk. The legal, financial and reputational risks for companies in relation to bluewashing will only grow as human rights reporting and due diligence requirements expand through state and federal Human Rights Acts.

It is also possible we will see a NSW or federal Human Rights Act in the near future. Once a NSW human rights bill is passed, the entire east coast and Australia's largest political and economic centres will have very similar Human Rights Acts. Consequently, there may be a greater incentive for companies to opt in to the various Human Rights Acts because:

• They can gain recognition from stakeholders for improving their ESG policies in Australia's largest states and territories. There is a growing expectation that companies will adhere to soft and hard law standards that stakeholders align with in their states and territories.
• They will benefit from economies of scale. Compliance and reporting obligations are similar across the states and territories, and it will therefore require very little additional effort to comply with all states and territories than it would to comply with one.
• Very few private entities have opted in so far, and no major companies have. So, the first few companies that do opt in will be seen as industry leaders.