A human rights complaint or action may be brought for a breach of section 58(1) of the Human Rights Act 2019 (Qld) (‘the Act’). This states a public entity must not act or make a decision in a way that is not compatible with human rights; or in making a decision, fail to give proper consideration to a human right relevant to the decision.

The Act does not give a direct remedy to individuals whose human rights have been breached by a public entity. Rather, people seeking to allege that their rights have been violated are required to rely on a separate ground of relief, at which point they could raise unlawfulness under the Act.

Dispute Resolution

The majority of human rights complaints made under the Act will be remedied through the dispute resolution framework implemented by the Queensland Human Rights Commission (QHRC). The process of bringing a complaint to the QHRC is discussed in the previous blog post “Queensland Human Rights Commission”.  Conciliation conferences will be held between complainants and representatives of the relevant public entity. They will be facilitated by an accredited dispute resolution practitioner from the QHRC, with the aim of reaching a practical agreement to resolve the complaint. Participation in a conciliation conference does not affect a complainant’s right to seek relief or remedy through legal proceedings. However, this process is relatively informal and cost effective in comparison to proceedings.

Who you can bring?

When attending a conciliation conference you may bring a support person. However, this person is not entitled to speak during the conference and should be someone that is not involved in the complaint. Upon request, you may also be entitled to bring a legal representative with the conciliator’s consent. During the conference you can request a short break to talk to your support person or legal representative in private. However, you will still be required to speak for yourself throughout the conference. Further, if you require an interpreter this can be provided by the QHRC.

What is the conciliator’s role?

The conciliator’s purpose is to ensure the conference is conducted fairly for all involved. A conciliator will not make a decision about whether a breach of the Act has occurred or what the outcome of the complaint will be as a judge would, nor can they tell you what to offer or take sides during the conference. Rather, their role is to facilitate discussion of the complaint by asking questions of both sides. Additionally, they will explain the law and advise the parties of the outcomes in similar cases so parties understand the likely result if the complaint is not resolved and legal proceedings are commenced. The conciliator may also assist the parties in generating options for resolving the complaint.

How is the conciliation conference conducted?

Conferences may be conducted as a face-to-face meeting, teleconference, or by a “shuttle” method whereby the conciliator shifts between talking to each party in separate rooms. In the conference you will be required to talk about what happened and how it has impacted you, as will the other side. If it is desirable, the conciliator may seek to speak to each side separately. The parties will then discuss how they could resolve the complaint. If agreement is reached, this will be recorded in writing and signed by the parties. Once signed, this agreement is binding. If agreement is not reached, the parties will be asked what next steps they would like to take to resolve it, such as legal proceedings.

Legal Proceedings

Proceedings regarding a breach of section 58(1) may only be brought through what is known as a “piggy-back” action. That means proceedings can only be brought under section 58(1) of the Act in conjunction with an independent cause of action, thereby “piggybacking” it to this action. In practice, the existing cause of action is likely to be seeking judicial review of the public entity’s decision which is what the human rights complaint relates to. Legal proceedings relating to a breach of the Human Rights Act 2019 (Qld) cannot be brought independently.

A person is entitled to seek any relief or remedy that they could have claimed in an independent action, excluding monetary damages. Even if the independent cause of action fails, for example an action in judicial review, the person may still be entitled to a remedy for the human rights contravention.

This is the final post in our human rights series! Other blog posts within the series include: