New Human Rights Requirements for Public Entities in QLD


The recently passed Human Rights Act imposes new obligations on prescribed public entities to ensure that human rights are considered during their decision-making process. Read on to find out if these apply to your organisation.

This training brochure applies to organisations who have functions of a public nature.

Human Rights Act 2019 (Qld)

The remainder of the Human Rights Act 2019 (Qld) (the Act) commenced on 1 January 2020.

Background

In Victoria and the Australian Capital Territory, human rights are expressly protected through legislation, being the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2004 (ACT) respectively.

In Queensland, human rights have historically been protected through various disconnected legislative changes (such as the Anti-Discrimination Act 1991 (Qld)) or under the common law. However, there is currently no unified human rights legislation in Queensland. The Act has consolidated existing human rights into a unified piece of legislation and has established express protections for other human rights that have not yet been recognised in Queensland.

The human rights protected under the Act are largely the civil and political rights drawn from the International Covenant on Civil and Political Rights but also includes property rights, rights to education and health services and cultural rights.

Importantly, the Act imposes new obligations for public entities. As discussed below, the Act defines public entities quite broadly and consequently organisations who would not traditionally consider themselves a public entity may fit the definition for the purposes of the Act.

Obligations for public entities

Under the Act, ‘public entities’ are required to ensure that they do not act or make a decision that is not compatible with human rights or fail to give proper consideration to a relevant human right in making a decision.

Public entities’ is broadly defined under the Act. Section 9 of the Act sets out a list of public entities, which relevantly includes:

  • government entities (e.g. public hospitals and health services);
  • public service employees;
  • an entity established under an Act when the entity is performing functions of a public nature;
  • an entity whose functions are, or include, functions of a public nature when it is performing the functions for the State or a public entity (whether under contract or otherwise);
  • NDIS providers, when performing functions of a public nature in Queensland.

Essentially the Act includes two types of public entities, ‘core’ or ‘functional’ public entities. Functional public entities are only considered public entities when they perform certain functions on behalf of the state whereas core public entities are always public entities and are usually government entities.

In deciding whether a ‘function is of a public nature’ the Act states that the following matters may be considered:

  • whether the function is conferred on the entity under a statutory provision;
  • 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;
  • whether the entity is a government owned corporation.

The Act provides examples of functions that are of a public nature including the provision of public disability, health or education services, emergency services, housing services, etc.

If you are unsure if your organisation meets the definition of a public entity please refer to the Fact Sheet prepared by the Queensland Human Rights Commission or contact Law Compliance.

The Act provides that giving proper consideration to a human right in making a decision includes, but is not limited to:

  • identifying the human rights that may be affected by the decision; and
  • considering whether the decision would be compatible with human rights.

We note, however, that the failure to comply with the above obligation does not invalidate the decision and the organisation does not commit an offence under the Act for a contravention alone.

We also note organisations are able to choose to be subject to the obligations, even if they do not meet the definition of a public entity.

New reporting requirements for certain public entities

The Act imposes new reporting obligations on certain public entities. If your organisation is required under section 63 of the Financial Accountability Act 2009 (Qld) to prepare an annual report, it must now ensure that it includes in each annual report:

  • details of any actions taken during the reporting period to further the objects of the Act;
  • details of any human rights complaints received by the entity; and
  • the details of any review of policies, programs, procedures, practices or services undertaken in relation to their compatibility with human rights.

Finally, the Act also introduces several offences that require organisations to comply with certain requests/directions from the Human Rights Commission.  Failure to comply with a request or direction may result in a fine of up to 170 penalty units (currently $22,686.50).

Conclusion

Organisations that meet the definition of a public entity should ensure that the human rights set out in the Act are considered during the decision making process. Additionally, if your organisation provides annual reports under the Financial Accountability Act 2009 (Qld), it should ensure that it has appropriate systems in place to comply with the new reporting requirements as summarised above and set out in detail in the new QLD – Human Rights topic.

Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au