Queensland Human Rights Commission

The Queensland Human Rights Commission, created by the Human Rights Act 2019 (Qld), will commence from 1 July 2019 through changing the name and expanding the functions of the pre-existing Anti-Discrimination Commission Queensland (ADCQ). The ADCQ has the power to handle complaints made under the Anti-Discrimination Act 1991 and provide training. From 1 July, these powers will extend to cover complaints and training relating to the Human Rights Act 2019.

 

Making a Complaint to the QHRC

Complaints must relate to acts occurring on or after 1 July 2019. A complaint must relate to an alleged breach of section 58(1), stating that a public entity has:

  • acted or made a decision in a way that is not compatible with human rights; or
  • in making a decision, failed to give proper consideration to a human right relevant to the decision

Before a person or entity can make a complaint they must make a complaint to the public entity itself, to be managed under their complaints process. If, after 45 business days, there has been no response or an inadequate response a complaint may be made to the QHRC. A complaint must be made in writing within one year of the alleged human rights contravention, stating the complainant’s name and address.

The QHRC will provide a dispute resolution process for handling human rights complaints, namely conciliation conferences. The obligations and dispute resolution functions are expected to start from 1 January 2020.

The Commissioner must refuse to deal with a human rights complaint if the Commissioner considers the complaint is frivolous, trivial, vexatious, misconceived or lacking in substance. It may also determine the complaint has already been dealt with by another entity, or could more appropriately be referred to another entity. In these circumstances, the complaint lapses and a further complaint cannot be made.

 

Other functions of the QHRC

  • if asked by the Attorney-General, to review the effect of Acts, statutory instruments and the common law on human rights and give the Attorney-General a written report about the outcome of the review;
  • to review public entities’ policies, programs, procedures, practices and services in relation to their compatibility with human rights;
  • to promote an understanding and acceptance, and public discussion, of human rights and the HR Act in Queensland;
  • to make information about human rights available to the community;
  • to provide education about human rights and the HR Act;
  • to assist the Attorney-General in reviews of the HR Act under clauses 95 and 96 (review of the HRs Act);
  • to advise the Attorney-General about matters relevant to the operation of the HR Act;
  • another function conferred on the Commission under the HR Act or another Act.

 

This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every week!

 


Human Rights Act 2019 (Qld) – Freedom of Expression and Freedom of Assembly

These rights are closely related as they both provide for a person’s personal liberty of thought, speech and movement which is essential in realising other fundamental rights such as:

  • the right to self-determination
  • the right to freedom of thought, conscience and religion or belief
  • the right to a fair hearing
  • the right to take part in public life
  • the right to liberty

They are relevant to the liability of a defendant, as well as their rights during proceedings and once sentenced.

 

Freedom of Expression

Section 21 of the Act provides for the right to freedom of expression, stating every person has the right to hold an opinion without interference. This is considered a fundamental component of an individual’s privacy, requiring absolute protection without external interference. Section 21 also upholds the right to seek, receive and impart information and ideas orally, in writing, in print, by way of art, or in another medium, within or outside of Queensland.

Victorian precedents hold that this right is subordinate to the right to a fair trial. That is, freedom of media expression may be temporarily curtailed if this is necessary to ensure a fair trial.

In other jurisdictions defendants have sought to invoke their right to freedom of expression as a defence to criminal charges against them. For example, in the Victorian case Magee v Delaney (2012) 39 VR 50 a defendant charged with willful damage for painting over an advertisement claimed he did so under his right to freedom of expression to express his disagreement with commercial advertising. However, the court rejected this line of argument, stating the right does not extend to criminal acts.  Another Victorian case, Fraser v Walker [2015] VCC 1911, also found the right is not a defence to charges such as obscene, indecent or threatening language.

The right to freedom of expression has been relied on in other jurisdictions to ensure prisoners’ rights are upheld in custody. For example, in Haigh v Ryan [2018] VSC 474 a refusal to allow a prisoner access to tarot cards was found to breach this right, and such the court overturned the prison administration’s decision. Freedom of expression can only be restricted for protection of national security, public order, public health or public morality, none of which were at risk in this case.

 

Freedom of Association

Section 22 provides for the right of peaceful assembly and freedom of association. This provision protects the right of citizen’s to meet, join and form groups. It covers both the preparing for and conducting of the assembly by the organisers and the participation in the assembly. While it is important for political purposes and trade unions, it extends to all forms of association with others. It includes the freedom to choose between existing organisations and form new ones.

Not every assembly of individuals is protected by this right. For example, consorting laws limit the freedom of association of offender’s involved in organised crime by making it an offence for them to associate or communicate with certain people, or attend at a certain place. This predominantly occurs under control orders issued pursuant to the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) with the aim of protecting the public by disrupting individual’s involvement in criminal activity. The explanatory notes of the Act say curtailing the freedom of association for this reason is a justified breach of the right, and that there are exceptions which appropriately allow members to participate in ordinary civic life.

This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!


Human Rights Act 2019 (Qld): Humane treatment when deprived of liberty

The Human Rights Act 2019 (Qld) establishes in domestic legislation the right of people deprived of liberty, that is people in custody or otherwise detained, to be treated with humanity, respect and the inherent dignity of the human person. This right enshrines a minimum standard of treatment for people in custody, explaining that a person’s rights should only be curtailed to the extent necessary for their confinement.[1] This right applies to those detained for criminal purposes, as well as people in custody for mental health or immigration purposes. This concept will have different consequences at each stage of the criminal process, as is explored below.

Rights of People Detained without Charge

The Act specifically states that those detained without charge must be segregated from persons who have been convicted of offences, unless reasonably necessary. This applies to a person who has been arrested and detained for questioning about a serious offence, but has not been charged with any offence. Generally, police can only detain a person for 8 hours without charge, questioning them for up to 4 hours. It also states they must be treated in a way that is appropriate for a person who has not been charged nor convicted. This accords with one of the fundamental aspects of our criminal justice system, that a person is innocent until proven guilty, and as such should be treated this way.

Rights in Custody

As well as ensuring prisoners are not subject to torture, cruelty or other serious forms of abuse, this right extends to lesser forms of mistreatment ensuring a person in custody can not be:

  • Refused necessary medical treatment; and
  • Unreasonably denied reading and radio facilities; and
  • Confined to their cell for an unreasonably long period; and
  • Subjected to unreasonable restrictions on correspondence with relatives; and
  • Held in ‘incommunicado’ detention’. This means denied any contact with the outside world such as family, friends, or lawyers in a situation where they can only communicate with guards or co-detainees.

A case pertaining to the Human Rights Act 2004 (ACT) provisions regarding humane treatment in custody held this may even extend the right to work to prisoners where it would foster their rehabilitation and support their wellbeing. In this case it applied to allow a prisoner a position tutoring other prisoners. However, the court is reluctant to declare the right of prisoners to work generally, confining it to particular cases and jobs.[2]

Rights in the Court Room

When appearing in court at trial or sentence, offenders are deprived of their liberty. Another ACT case established the right extended to the court room, commenting on the rudeness with which a Magistrate had treated the offender in a previous hearing. The court stated that even where the offender had committed a serious offence of which they rightly disapprove, judicial officers are to act with courtesy and respect, particularly when a sentence of imprisonment is imposed.[3] This is because the criminal justice system must at all times recognise a person’s inherent dignity as a human and treat them accordingly.

Effect on Sentences

This right impacts sentences relating to prisoners whose circumstances mean the conditions of prison will be particularly harsh on them, resulting in shorter custodial sentences. A common example is prisoners who are elderly. A Victorian case established that this principle also extends to people suffering a serious psychiatric illness, in circumstances where the custodial environment is likely to result in the continuation or deterioration of this condition. The rationale for this is to allow imprisonment of such a person would be to deny their humanity.[4] Another Victorian case stated the fact that a prisoner is likely to serve their sentence in protective custody, and as such in more isolation than a prisoner normally would, is also a relevant sentencing factor if it can be demonstrated this would be more onerous on them than a sentence served in mainstream custody.[5]

Custody of Children

Children are only imprisoned as a last resort. In these cases, the court in Victoria stated it is not appropriate for prisoners serving sentences to be detained alongside those in remand.[6] While none of the following have conclusively been ruled out, the court has drawn attention to the following practices as likely to raise questions regarding the right to human treatment in custody:[7]

  • Solitary confinement, especially for long periods; and
  • Strip searches; and
  • Being shackled, including with hand cuffs; and

The use of extendable batons and capsicum spray has been ruled as unlawful in Victoria as it violates this right.[8]

All persons facing the criminal justice system deserve to have their rights fully protected. This includes not only during the trial process but also during any period of imprisonment that may be imposed upon conviction and sentence.

This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!

 

[1] Human Rights Bill 2018 (Qld) Explanatory Notes, clause 30, page 24-25.

[2] Eastman v Chief Executive of the Department of Justice and Community Safety [2010] ACTSC 4.

[3] Moh v Pine [2010] ACTSC 27.

[4] R v Kent [2009] VSC 375.

[5] R v Bangard (2005) 13 VR 146.

[6] Application for Bail for H L (No 2) [2017] VSC 1.

[7] Dale v Director of Public Prosecutions [2009]VSCA 212; Certain Children by the Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796.

[8] Certain Children v Minister for Families and Children (No 2) [2017] VSC 251.


Human Rights Act 2019 (Qld): Right to a Fair Hearing

The right to a fair hearing is now enshrined in Queensland domestic legislation under the Human Rights Act 2019 (Qld). Every person charged with a criminal offence has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The right to a fair trial in other jurisdictions has been interpreted as extending to the investigation and evidence-gathering phases of the criminal process.

 

What is ‘Fair’?

While what is ‘fair’ will depend entirely on the circumstances of a particular case,[1] there are a number of accepted factors relevant to criminal proceedings such as:[2]

  • A court must be competent, independent and impartial. A court must decide a case according to the law, with no external factors or personal bias affecting the decision. In Queensland, judges and the court system are entirely separate from Parliament and other government bodies to ensure they do operate independently.
  • A person charged with a criminal offence is to be presumed innocent until proven guilty, with the prosecution bearing the onus of proving the offence beyond reasonable doubt.
  • Defendant must be afforded adequate time and resources to prepare for a trial. This includes the ability to access and communicate with a lawyer chosen by them.
  • A trial must proceed without undue delay since the arrest. When considering a delay, the court will have regard to the length and reasons for the delay, as well as whether it prejudiced the defendant.[3]
  • When charged with a criminal offence, unless explicitly electing to be self-represented, a person has the right to engage a lawyer. If they are unable to pay for representation, they will be afforded a legal advice or representation through Legal Aid or a community legal centre.
  • Right to an interpreter if they cannot speak or understand English adequately to understand the charges or proceedings in court.
  • A person charged with a criminal offence has a right not to self-incriminate themselves or confess at all stages throughout police questioning, to the conclusion of the trial. A limited number of exclusions apply to this right.

 

Disclosure and Evidence

An individual charged with a criminal offence has the right to know the case against them. They must be informed of the charges against them promptly, in a language they understand, and in sufficient detail to enable them to engage a lawyer and defend the charges. An accused must also have access and disclosure of evidence and witnesses to be presented against them. [4] These disclosure obligations seek to address the power imbalance between the resources available to the state, and those available to an individual charged, ensuring they are not at a disadvantage. One important role of a criminal lawyer is to ensure this disclosure occurs, and to review the (often overwhelming) amount of information provided, using this to form a defence.

 

Public Hearings and Judgements

The right to a fair trial also includes the right for the trial and judgement to be made available to the public. This is internationally recognised as relating to the right to a fair hearing as it facilitates public scrutiny of the criminal justice and court systems, often by publication of information by the press. This safeguards individuals charged against judicial corruption or bias. However, there are exceptions when the right to a fair trial may require the public or media be excluded from the court or judgements not be published. The Human Rights Act 2019 (Qld) allows for these exceptions when it is in the public interest or the interests of justice. In a criminal case, this may include circumstances where:

  • It is required to protect the safety or identity of a witness or any other person; or
  • It is required in the interests of national security; or
  • To avoid undue distress or embarrassment to a witness, particularly a child, in proceedings relating to family and sexual offences; or
  • It is necessary to ensure the defendant is not prejudiced. For example, a jury is not allowed to know a defendant’s criminal history as it may impact their verdict in relation to the current offence they are being tried for. In high profile cases, if this information is widely publicised a mistrial may result wasting time, money and causing undue stress to all involved.

 

This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!

[1] Dietrich v R (1992) 177 CLR 292.

[2] Australian Law Reform Commission, “Attributes of a Fair Trial” (undated).<https://www.alrc.gov.au/publications/attributes-fair-trial>.

[3] Foote v Somes [2012] ACTSC 63.

[4] Ragg v Magistrates’ Court of Victoria and Corcoris [2008] VSC 1; R v Falcone (2008) 190 A Crim R 440.


Human Rights Act 2019 (Qld) passed for Queensland

After decades of campaigning, the Queensland Parliament passed the historic Human Rights Act on 27 February 2019, with Robertson O’Gorman Director Dan Rogers in attendance as pictured. The historic day called for celebration for many who, for years, had tirelessly lobbied Members of Parliament, writing submissions and holding advocacy events to raise the profile of the need for human right’s to be legislated in Queensland. The Human Rights Bill was introduced into Parliament on the 31st October 2018 by the Palaszczuk Government. The Attorney-General and Minister for Justice the Honourable Yvette D’Ath introduced the Bill, stating its purpose as recognising the equal and inalienable human rights of all persons, and changing the culture of the public sector to put Queenslander’s first. Despite all Members agreeing they support human rights as a concept, the Act was fiercely debated in Parliament, with opposition Members claiming it was unnecessary and undemocratic, undermining the Westminster System. A parliamentary committee, committed to reviewing the Bill, accepted 149 written submissions. 135 of those were in support of the Bill. Among the stakeholders, there was general consensus that the Act should be based on the Victorian Human Rights Act, as well as having additional social and economic rights. In line with these submissions, The Queensland Act is the broadest piece of human right’s legislation in Australia. At the conclusion of the assembly’s debate, The Honourable D’Ath acknowledged hundreds of submissions from individuals and organisations, including both Caxton Legal Centre for which Dan Rogers is the President of the Management Committee, and the Queensland Council for Civil Liberties for which Terry O’Gorman is the Vice President. These submissions informed the debate regarding the introduction and form of the Act, with its introduction marking a historic day in Queensland’s history.

 

This blog is part of a fortnightly series on the Queensland Human Rights Act which will break down key rights and remedies, and examine the role of the Human Rights Commission and the relationship between Human Rights and Criminal Law. Keep posted every Monday!

 


MEDIA RELEASE BY TERRY O’GORMAN VICE-PRESIDENT, QUEENSLAND COUNCIL FOR CIVIL LIBERTIES

The Civil Liberties Council today called on both the Premier Annastacia Palaszczuk and Opposition Leader Deborah Frecklington to declare their public support concerning CCC Chair Alan MacSporran QC’s call for the Queensland Independent Remuneration Tribunal to take over setting staff entitlements for Queensland political parties.

QCCL Vice-President Terry O’Gorman said that when the issue first broke, the QCCL said that the Premier should immediately review her decision to strip the KAP of three Parliamentary staff as it represented a breach of a major pillar of the 1989 Fitzgerald Report which mandated that non Government party members must be properly resourced to enable them to do their job.

“The CCC Chair’s comments yesterday that the allocation of resources to elected members of Parliament is a fundamental plank in a democratic system and that there should not be political interference with Opposition parties’ resource allocation should be supported and acted upon immediately by both the Premier and the Opposition Leader”, Mr O’Gorman said.

“Indeed, there is a necessity for the Premier today to immediately reverse her decision to strip KAP of its three Parliamentary staff and restore their staff entitlements”, Mr O’Gorman said.

Mr O’Gorman said that any Parliamentary Committee set up to examine the fallout from the issue should also look at the Opposition’s role in the matter.

“When the decision to strip KAP of its Parliamentary staffing was announced, Deputy Opposition Leader Tim Mander said the Opposition had shamed the Government into taking action to strip KAP of its Parliamentary staff”, Mr O’Gorman said.

“If Mr Mander is calling for a Parliamentary Committee to examine the matter, the Opposition’s ‘behind the scenes’ role in the ultimate decision by the Premier to strip KAP of its Parliamentary staff must be examined and exposed”, Mr O’Gorman said.

Mr O’Gorman can be contacted during business hours on 07 3034 0000 or after hours on 0418 787182