Statutory interpretation under section 48 of the Human Rights Act 2019 (Qld): the first eighteen months
Benedict Coxon
29.09.2021
On 1 January 2020, the Human Rights Act 2019 (Qld) (QHRA) entered fully into force, including the interpretive provision contained in s 48, which was modelled on s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) and s 30 of the Human Rights Act 2004 (ACT) (ACTHRA). All of these provisions are features of what has been described as the ‘new Commonwealth model of constitutionalism’, which is said to provide ‘novel … techniques for protecting rights within a democracy’. It has been argued by one Queensland commentator (West) that s 48’s addition ‘to the panoply of rules of statutory interpretation’ will be the QHRA’s ‘most important contribution to the law’. This is despite the modesty of s 48 being emphasised during its gestation, and the possibility that other aspects of the QHRA — such as its potential as an advocacy tool and its innovative complaints procedure — might overshadow the interpretive provision.
The key subsections of s 48 are as follows:
(1) All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
(2) If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
There is no equivalent of subsection (2) in legislation in other ‘new Commonwealth model’ jurisdictions, although it has been noted that the provision ‘embodies and codifies’ the approach of Victorian courts to s 32 of the Charter.
Another novel feature of the QHRA is the clarity with which it defines the concept of compatibility with human rights. Section 8 defines, inter alia, a statutory provision as ‘compatible with human rights’ where it ‘(a) does not limit a human right; or (b) limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13’. Section 13(2) lists factors that may be relevant in deciding whether a limit is reasonable and justifiable. A vexed question under the Charter and the ACTHRA, as prominently exemplified by conflicting dicta in the High Court case of Momcilovic v The Queen (2011) 245 CLR 1, has been whether the mandated proportionality analysis bears on the application of the interpretive provision. Section 8(b) makes clear that proportionality considerations are applicable to this exercise, although the required methodology remains complex, and courts and tribunals may take time to engage with it fully.
We have almost arrived at the halfway mark between the full entry into force of the QHRA and the date stipulated by s 95 after which the operation of the legislation must be reviewed: 1 July 2023. It is therefore worth examining the first eighteen months of the operation of s 48 in order to consider: how courts and tribunals have applied it; their methodology in doing so; the impact of the provision; and its potential.
Application
Compatibility with human rights without limits
In two cases in which s 48 has been raised, legislative provisions under consideration have been held to be compatible with human rights because they did not limit a human right (and therefore recourse to the factors in s 13(2) was not necessary): see QHRA s 8(a). In one of these, Re Ipswich City Council [2020] QIRC 194 (Ipswich), the Queensland Industrial Relations Commission granted an exemption from certain provisions of the Anti-Discrimination Act 1991 (Qld), holding that allowing the applicant Council to advertise to employ only female waste truck drivers for a training program was compatible with human rights as a positive discrimination measure within s 15(5) of the QHRA.
The second case, the Queensland Civil and Administrative Tribunal (QCAT) decision of SF v Department of Education [2021] QCAT 10 (SF), is the closest that a Queensland court or tribunal has come to applying s 48 to dispose of a proceeding. The applicant was a victim of domestic violence who wished to home-school one of her children. The respondent submitted that strict compliance with the Education (General Provisions) Act 2006 (Qld) required an actual address to be provided on a certificate of registration of a child for home education, whereas the applicant had described her place of residence on the approved form as simply a town. The QCAT decided (at [33]) that the provision of a town name, along with a postal address and mobile phone number, was ‘sufficient for her to meet the procedural requirements of the application form where further disclosure would jeopardise her and her family and her application otherwise met the requirements for home education’. This conclusion was held (at [34]) to be consistent with the objects of the Act and common law interpretations of the term ‘residence’. The QCAT proceeded to bolster this conclusion, albeit in obiter, by reference (at [39]) to the provisions of the Acts Interpretation Act 1954 (Qld) addressing substantial compliance with forms (see s 48A), as well as s 48 of the QHRA.
As to the latter, the QCAT rejected the respondent’s proposed interpretation as limiting ‘SF’s child’s right to access education appropriate to that child’s needs together with SF and her children’s fundamental rights to be properly protected and to not have their privacy, family or home arbitrarily interfered with’ (see [50]) beyond an extent that was reasonable and demonstrably justifiable (see [47]). The QCAT concluded (at [53], citing Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476) that its preferred interpretation was ‘compatible with human rights’ and also relied on related common law principles in finding it ‘consistent with the general rule of statutory construction that the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms’.
Compatibility with human rights subject to reasonable limits
In at least seven cases in which s 48 has been raised, the QCAT has held legislative provisions under consideration to be compatible with human rights on the basis that any limits on rights that they impose are reasonable and demonstrably justified: see QHRA s 8(b). While some proportionality analysis as envisaged by s 13 has been engaged in — as in Queensland through the Department of Housing and Public Works v Tenant [2020] QCAT 144 (DHPW) and PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188 — it has more often been omitted in favour of a brief conclusion, most notably in a number of QCAT cases in which applicants sought a ‘blue card’ entitling them to work in child-related employment under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act): see ZB v Director-General, Department of Justice and Attorney-General [2021] QCAT 82; HM v Director-General, Department of Justice and Attorney-General [2021] QCAT 13 (HM); DL v Director-General, Department of Justice and Attorney-General [2021] QCAT 61; MK v Director-General, Department of Justice and Attorney-General [2021] QCAT 62; BW v Director-General, Department of Justice and Attorney-General [2021] QCAT 158 (BW).
In one case under the Working with Children Act, Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152 (Storch), the QCAT undertook a detailed analysis of the application of various human rights. The analysis in respect of each right appeared to lead to a conclusion that each of the relevant rights was not in fact engaged by the impugned legislation, and yet the QCAT concluded (at [441]) that it was ‘satisfied that any limits imposed by the Tribunal’s decisions and actions are reasonable and justified’. This might suggest that the structure of the QHRA and the methodology for its application have not yet fully been grasped, as the limitation of rights was irrelevant if the rights were not even engaged.
Declining to apply s 48 in absence of legislative ambiguity
This suggestion is supported by Innes v Electoral Commission of Queensland [No 2] [2020] QSC 293 (Innes) in the Court of Disputed Returns, in which Ryan J considered a challenge under s 136 of the Local Government Electoral Act 2011 (Qld) (LGEA) by an unsuccessful mayoral candidate to the re-election of an incumbent mayor. The applicant sought to challenge the conduct of the local government election as a whole, rather than the election ‘of a person’ as s 136(1) stipulated. Justice Ryan reached the conclusion (at [256]) that ‘[t]here is nothing ambiguous about s 136 LGEA. Its purpose is clear. I do not need recourse to s 48 [of the QHRA] in its interpretation’. While the conclusion cannot be faulted, s 48 requires a ‘second look’ at what might at first glance appear to be a clear legislative provision. Putting s 48 to one side without consideration is not consistent with the methodology envisaged by the structure of the QHRA (although this approach is not unknown in Victoria, and the Queensland Human Rights Commissioner had identified shortly after s 48 came into force the possibility of Queensland courts taking this approach).
Methodology
The question then arises: what is the methodology envisaged by the structure of the QHRA? A decision of Applegarth J sitting in the Supreme Court, The Australian Institute for Progress Ltd v Electoral Commission of Queensland (2020) 4 QR 31 (AIP), provides helpful guidance. The applicant, a ‘think tank’, received funding from some property developers who were ‘prohibited donors’ within s 273 of the Electoral Act 1992 (Qld), s 275 of which prohibited political donations by that class of person. Section 274(1)(b) defined ‘political donation’ to include a gift made for the benefit of another entity to enable the entity to incur electoral expenditure. The applicant wished to participate in an upcoming state election, including producing and distributing material that would advocate a vote for or against a registered political party.
The applicant submitted that s 274(1)(b) is concerned with the incurring of electoral expenditure ‘on behalf of’ any one of the three entities referred to in s 274(1)(a), namely a political party, an elected member, or a candidate in an election — leaving the applicant outside the scope of the provision. The respondent and the Attorney-General (intervening) disagreed; as did Applegarth J, in the result.
Justice Applegarth held (at [113]) that ‘s 48 [Q]HRA is relevant to the interpretation of s 274(1)(b) of the Act’. He identified that the reference to compatibility with human rights in s 48 directs attention to ss 8 and 13 of the QHRA, before noting (at [117]) that s 48(1)
does not authorise an interpretation of statutory provisions which is inconsistent with their purpose. Instead, the provisions must be interpreted, to the extent possible that is consistent with their purpose, in a way that is ‘compatible with human rights’.
He held (at [120]) that
[i]n respect of the part of the definition of ‘political donation’ in s 274(1)(b), s 275 may be said to limit the freedom of expression of individuals and their right to take part in public life in respect of activities involving expenditure that is incurred for the purposes of a campaign for a State election [see QHRA ss 21, 23].
Justice Applegarth identified that this led to an analysis under s 13, requiring him to address the factors listed in s 13(2). Following detailed consideration of these factors, his conclusion (at [135]) was that ‘the limitations on the human rights contained in the [Q]HRA are reasonable limits that can be demonstrably justified’, which meant that s 274(1)(b), properly interpreted, was compatible with human rights (see [136]). No issue under s 48(2) therefore arose (see [138]).
Justice Applegarth approached the application of s 48 with a sound methodology that was clearly expressed. This decision provides a useful model for future cases in which s 48 is engaged, both for parties making submissions, and for the relevant courts or tribunals adjudicating.
Impact
Interventions by the Attorney-General and the Queensland Human Rights Commission
It seems reasonable to assume that Applegarth J’s methodology in AIP was based largely on the submissions of the Attorney-General intervening in that case, given the following description (at [112]) of the submissions on the QHRA:
The AIP’s original written submissions supported its approach to statutory construction and its reliance upon the ‘principle of legality’ by contending that it was consonant with the [Q]HRA. By letter dated 6 March 2020 the solicitors for the AIP advised that, in the interests of having the matter promptly determined, it would ‘not press any issue arising under the Human Rights Act’. The submissions of the Attorney-General however, referred to s 48 [Q]HRA in connection with the issue of interpretation and advanced arguments as to why the relevant provisions, when interpreted in the way contended for by the [Electoral] Commission, were ‘compatible with human rights’ under the [Q]HRA. In addressing the issue of statutory construction and the proper approach to statutory construction, Senior Counsel for the AIP submitted at the hearing that the [Q]HRA did not ultimately progress the argument about the point of statutory construction.
Similarly, in Innes, a case in which the applicant was self-represented, it was the submissions of the Attorney-General intervening that were crucial to Ryan J’s reasoning on issues under the QHRA (see [199]–[200] (citation omitted)):
The Attorney-General provided comprehensive written and oral submissions to the Court on the human rights aspects of Mr Innes’ arguments. However, it seems that Mr Innes did not intentionally raise [QHRA] issues, and indeed objected to the way in which his arguments were re-cast by the Attorney-General in terms of the [QHRA].
While he did his best to respond to the Attorney-General’s submissions and his re-cast arguments, Mr Innes’ submissions were not of assistance to me in resolving the [QHRA]’s complexities.
The Queensland Human Rights Commission has also made influential submissions as an intervener where the applicant ‘made no specific submissions’ on s 48 (in an application to which there was no respondent): see Ipswich at [34], [72].
Submissions by the Crown as a party to proceedings
In other cases, it has fallen to the Attorney-General’s Department as respondent to address QHRA issues, although the Department’s submissions often appear to have been modest in this context — relying on reasonable limits on rights under ss 8 and 13, and the purpose of the legislation under consideration, to dispose of QHRA arguments: see HM at [122]; BW at [84]. In one case in which the self-represented applicant relied on the QHRA, it is unclear on the face of the QCAT’s reasons whether the Department addressed these issues at all: see Storch.
Submissions by other government departments also appear to have been limited. It is not clear whether in SF the Department of Education addressed s 48; the single reference to its QHRA submissions relates to s 58. Despite the fact that the result for which the (legally-represented) applicant contended was held to be consistent with s 48, it is equally unclear whether the applicant relied on s 48 in her submissions. In DHPW, in which the Department of Housing and Public Works was the applicant in the proceeding and the respondent was self-represented, neither of the parties in their written submissions summarised ‘the rights, entitlements, and procedures under the [Q]HRA so as to determine which are relevant before deciding whether they are limited on the facts of this case’ (see [157]). In that case, the QCAT noted (at [151], citing Horizon Housing Co v Ross [2020] QCAT 41) that
the [Q]HRA adds substantial complexity to the tenancy law of this State. … The [Q]HRA also adds significantly to the time required to conduct hearings and give decisions in cases such as this where human rights are potentially affected.
Private parties avoiding s 48
This is true not only of tenancy law, but across the legal system of Queensland, as was recognised by the editor of the Queensland Lawyer soon after the enactment of the QHRA. It is borne out by the strategy of the applicant in AIP, which abandoned its submissions based on the QHRA ‘in the interests of having the matter promptly determined’. Most of the submissions on the QHRA in the cases discussed above have been made by the Attorney-General, either intervening (a rare occurrence) or as the respondent to an application. Private parties have shied away from making submissions. While many of the cases involve self-represented litigants (Innes; Storch; DHPW), parties with legal representation have also been silent on the QHRA (Ipswich) or have even strategically abandoned submissions (AIP). In other cases, it is unclear whether legally-represented applicants addressed the QHRA (HM; BW), including the case in which s 48 has come closest to determining the outcome of the proceeding (SF). Chief Justices of both Victoria and the ACT have noted reluctance on the part of practitioners in those jurisdictions to raise arguments under equivalent human rights legislation.
All of this points to s 48 having a muted impact, either because parties and their advisers are not aware of its potential applicability or because they are concerned about the complexity of the required methodology (as illustrated by AIP) and the additional burden that this might place on the resources of the parties — especially where it leads to interventions by the Attorney-General and/or the Queensland Human Rights Commission. This is consistent with the experience in Victoria as described by a barrister practising in the area (Nekvapil).
Potential
The Queensland Human Rights Commissioner’s October 2020 remark about the QHRA that ‘the important test cases determining some key questions of law lie ahead of us’ remains accurate. He correctly identified that
the extent to which Courts are able to engage with the Act to develop a healthy human rights jurisprudence in Queensland, is largely dependent on the manner in which cases are presented to them by the profession. Clearly, there is a leadership role here for the legal profession and I am pleased that both the Queensland Law Society and the Bar Association of Queensland have established human rights committees that have been active in promoting awareness of the Act’s potential application.
Even if the efforts of these committees lead practitioners to heed the call to raise issues under the QHRA where applicable, the role of s 48 may remain relatively minor. While it has been suggested that — contrary to the weight of Victorian case law on s 32 of the Charter — s 48 of the QHRA could more readily justify requiring statutory words to be read in a way that does not correspond with a literal or grammatical meaning, it seems more likely that Queensland courts will not be emboldened to interpret s 48 in this way. Indeed, the Victorian experience has been characterised by a ‘signal lack of enthusiasm with which, by and large, Australian judges have approached the Victorian Charter in all its aspects’ (Geiringer).
The potential of the QHRA may lie less in its interpretive provision than in its mere existence, as well as in a separate, unique feature of the legislation. The QHRA may prove useful to advocacy groups in assisting engagement with public authorities due to the ‘threat of litigation’, as has been identified in Victoria (Boughey). Moreover, individuals may utilise the innovative procedure set out in Part 4, Division 2 of the QHRA, by which complaints may be made to the Queensland Human Rights Commissioner. While not without its critics, this mechanism has already been employed in the context of the COVID-19 pandemic by an individual making a complaint (with a degree of success) about a lack of fresh air in hotel quarantine, and by a prisoner making a complaint about the length of her isolation period after admission to prison.
To return to the commencement of this discussion, regardless of whether s 48 is the QHRA’s ‘most important contribution to the law’, it may prove not to be the QHRA’s most important contribution to the protection and promotion of human rights in Queensland.
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Benedict Coxon is an Honorary Research Fellow at the University of Western Australia Law School.
Suggested citation: Benedict Coxon, ‘Statutory interpretation under section 48 of the Human Rights Act 2019 (Qld): the first eighteen months’ on AUSPUBLAW (29 September 2021) <https://www.auspublaw.org/blog/2021/09/statutory-interpretation-under-section-48-of-the-human-rights-act-2019-qld-the-first-eighteen-months/>