Protecting decisions from human rights challenges in Queensland – getting the balance right

Queensland government decision-makers should pay attention to a recent Supreme Court decision which helps clarify when decisions can be challenged on human rights grounds under the Human Rights Act 2019.

Austin BMI Pty Ltd v Deputy Premier concerned the legality of the Deputy Premier's decision to "call-in" a development application from Wanless Recycling Park Pty Ltd for a resource recovery and landfill facility which had been partially refused by Ipswich City Council.

The call-in decision was unsuccessfully challenged by two other waste operators on traditional administrative law grounds – including because the decision was allegedly the subject of apprehended bias and was an improper exercise of power on various grounds.  

Human rights challenge

In the context of the judicial review proceedings, a group of local residents known as the Ashworth parties, also challenged the call-in decision, arguing that it was incompatible with their following rights under the Human Rights Act:

• right to participate in public life (section 23(2)(b)), including because Wanless engaged lobbyists and was therefore allegedly able to gain more favourable access to the Deputy Premier;
• right to property (section 24), because the call-in decision allegedly extinguished an appeal right (which should be treated as property) to the Planning and Environment Court; and
• right to a fair hearing (section 31(1)), because the call-in decision allegedly extinguished their right to participate in legal proceedings which the call-in decision discontinued.

Public entity obligations under the Queensland Human Rights Act

In accordance with section 58 of the Human Rights Act, the Deputy Premier had to properly consider human rights and make decisions compatibly with human rights.

The Deputy Premier considered various documents contained in a briefing note when making the call-in decision, including one entitled 'human rights assessment'. This document identified that the rights to participate in public life and property were limited, along with several other rights not raised by the Ashworth parties.

His Honour held that the Deputy Premier's reference to the "human rights assessment" document "assisting with his consideration and his determination" helped establish that the call-in decision was compatible with human rights. The Deputy Premier was "entitled to seek and obtain the advice of… public servants".

His Honour held that the task of assessing whether a decision is compatible with human rights should be considered in three stages: engagement, limitation and justification.

In applying these stages to the three impugned rights, His Honour ultimately found that none of them were limited. The Court also clarified the scope of these key rights.

The right to participate in public life: section 23

Section 23(2)(b) protects the right and opportunity "without discrimination… to have access, on general terms of equality, to the public service and to public office".

His Honour held this right was not engaged by the call-in decision because the right "addresses a right to join the public service, not a right to communicate with a public servant". Importantly, His Honour also held that to engage this right, there had to be some evidence of discrimination based on a protected attribute of the type outlined in the Anti-Discrimination Act 1991 (Qld). This potentially limits the scope of all rights where there is an element of discrimination.

The right to property: section 24

Under section 24, a person must not be arbitrarily deprived of their property. While the term "property" is interpreted broadly in a human rights context, His Honour held it does not include a statutory right to take part in an appeal under the Planning Act 2016 (Qld).

His Honour held that "the values underlying the right to property in the Human Rights Act are the need to ensure that human beings can supply themselves with food and otherwise support themselves." These values "are not at stake in deciding whether the statutory right in section 229 of the Planning Act is a form of property".

The case is also significant because it reiterates that in human rights challenges, applicants bear the onus of establishing a limit on human rights, including any internal limitations such as arbitrariness.

The right to a fair hearing: section 31

The call-in decision had the practical effect of ending Wanless's appeal of the Council's decision to partially refuse the development application. The Ashworth parties claimed that their rights to a fair hearing had been limited, as they were also denied the ability to participate in the appeal. The Ashworth parties also claimed that the Deputy Premier had failed to properly consider the right to a fair hearing because there was no reference to this right in the 'human rights assessment' document.

His Honour concluded that the right to a fair hearing is unlikely to be engaged where a decision (like a call-in decision) is subject to judicial review by a competent court (as was the case here). Support for this view could be found in relevant cases concerning the European Convention on Human Rights). It followed that the omission of this right in the human rights assessment considered by the Deputy Premier was of no consequence, as the right was not engaged by the decision.

A failure to consider human rights a non-jurisdictional error?

Finally, His Honour clarified a point of law that a breach of section 58(1) (the obligation to make decisions compatibly with human rights) is a non-jurisdictional error. This was relevant because the section 231 of the Planning Act 2016 bars judicial review of non-jurisdictional error under that Act. This meant that the Ashworth parties' human rights challenge was barred under the Planning Act. In this context the Court emphasised that the Minister's call-in powers are special reserve powers that can be exercised largely at the Minister's discretion.