25 Nov 2021

Just how proper does a decision-maker’s consideration of human rights need to be?

By Tim Gordon, Corinne Leach and Eliza Parer

To reduce the risk of a successful human rights challenge, Queensland public entity decision-makers must identify all relevant human rights that may be impacted by the decision.

In what is perhaps the most significant decision on the Queensland Human Rights Act 2019 so far, the Queensland Supreme Court has made clear the need for public entities to carefully and explicitly consider relevant human rights when making decisions, or run the risk that a failure to do so can lead to their decisions being declared unlawful.

The decision in Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 reflects an increasing trend of decisions by public entities being challenged on both traditional judicial review and human rights grounds.

The Owen-D'Arcy application

In 2010, Mr Michael Owen-D'Arcy (the Applicant) was convicted of murder and sentenced to life imprisonment. From 2013, the Applicant was subject to consecutive Maximum Security Orders issued every six months. On 17 June 2020, the Executive Director of the Department of Corrective Services made a decision to issue a further Maximum Security Order (MSO Decision) in respect of the Applicant, including a direction not permitting him to associate with other prisoners (No Association Decision).

The Applicant applied to the Queensland Supreme Court to review the decisions on traditional judicial review grounds, including that the decision-maker had failed to take into account relevant considerations. The Applicant also sought piggy-back human rights relief on the basis of the decisions being unlawful under the Human Rights Act.

Judicial review

The Court upheld the Applicant's judicial review application by finding that the decision-maker had not taken into account a relevant consideration when making the No Association Decision – namely, giving "proper consideration" to human rights in accordance with the Human Rights Act.

The Court found that the decision-maker had considered some – but not all – of the Applicant's human rights which may have been impacted by the decisions, including particularly his right to humane treatment when deprived of liberty. The consideration of human rights was said to have been "superficial consideration at best".

Human rights

The Applicant also successfully argued that both the MSO Decision and the No Association Decision were unlawful under the Human Rights Act.

The Court emphasised that the provisions of the Human Rights Act which bestow, protect and enforce rights should be construed as widely as their terms permit. The Court also reiterated that the requirement to consider human rights and balance the competing justifications for limiting human rights, "draws the court more deeply into the facts … than traditional judicial review".

The Court noted that the standard of proof required to discharge this onus is high and that the evidence required must be "cogent and persuasive".

On the facts, the Court further found the decision-maker had not established that the limits placed upon the Applicant's right to humane treatment were reasonable and proportionate. In particular, the decision-maker did not satisfy the onus of demonstrating there was no less restrictive and reasonable alternatives to the limitation on human rights and had not balanced the importance of the limitation against the importance of preserving the human right.

Key takeaways for Queensland decision-makers and tips on how to properly consider human rights when making decisions

The Owen D'Arcy case is the clearest example in Queensland so far of a case which confirms that a failure to give proper consideration to human rights can make a decision by a public entity unlawful both on traditional public law grounds (such as failure to provide natural justice or consider a relevant consideration) and under the Human Rights Act. It also confirms that even if judicial review arguments are not successful, that piggy-back relief on human rights grounds can still be obtained.

The case clarifies that once an applicant establishes that their human rights have been limited, the onus shifts to the public entity to prove that the limitation was reasonable and proportionate. In this case, the decision-maker had not provided any affidavit evidence to establish that they had considered less restrictive means for achieving the intended purpose. The Court therefore held that the limit on human rights was not legally justified.

Going forward, it is now clear that to reduce the risk of a successful human rights challenge, public entity decision-makers must:

  • Identify all relevant human rights that may be impacted by the decision – in the words of the Court, "rights must be identified if they 'may' be affected by the decision";
  • Consider how the relevant human rights will be impacted by the decision; and
  • Provide cogent and persuasive documentary evidence to demonstrate that any limitation on a relevant human right is reasonable and justifiable.

There are further high-profile and extensive human rights challenges already before the Courts in Queensland and other jurisdictions with human rights legislation, including challenges to mandatory COVID-19 vaccination policies and decisions in relation to climate change. These cases reiterate the increasing need for public entities to have robust human rights decision-making processes and suitable training for decision-makers.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.