Strategic Review of the Human Rights Commission
Secretariat Support
Strategic Review of the Queensland Human Rights Commission
c/- Office of the Deputy Director-General, Corporate Services
GPO Box 149
BRISBANE QLD 4001
By E-Mail: qhrc.strategic.review@justice.qld.gov.au
Dear Hon Peter Flanagan KC,
RE: Strategic Review of the Human Rights Commission
The Queensland Council for Civil Liberties (“the QCCL”) is a not-for-profit organisation that promotes civil liberties and receives queries from members of the public regarding their civil liberties and individual rights.
We make this submission in response to the Discussion Paper for the Strategic Review of the Queensland Human Rights Commission and related reviews released on 30 September 2026 (“the Discussion Paper”).
We have responded to the questions posed in Part A, B and C of the Discussion Paper as follows.
Functions
A1 Should there be any changes to the drafting of the QHRC’s functions or powers?
We agree that the anomalies between the functions of the Commission as set out in the ADA and HRA should be harmonised but not so as to reduce the overall functions of the Commission.
A2 What is your experience of the QHRC’s complaints handling processes?
Except as described below QCCL has no direct experience of complaints under either Act and so leaves the response to this question to others.
A3 Does the QHRC appropriately determine which complaints to accept and which to reject?
Again, this question is best answered by those with actual experience of the process.
A4 Are there any improvements you would make to the QHRC’s complaints handling processes, including to improve the efficiency of the process?
We have no objection to complaints being in video or audio form. Form does not matter; the question is whether or not the complaint was sufficiently detailed to meet the obligation to accord the respondent procedural fairness.
A5 Does the QHRC engage appropriately with parties to a complaint, and how could they improve their engagement?
Again, this is best commented on by those with actual experience.
A6 What is your experience (whether as a complainant or a respondent) of the conciliation conference process?
Again, this is best commented on by those with actual experience.
A7 Is the conciliation process effective and how could it be improved?
Again, this is best commented on by those with actual experience.
A8 Should there be more, or different, avenues to resolve complaints?
Again, this is best commented on by those with actual experience.
Interventions
A9 Should the QHRC have a right to appear as amicus curiae (“friend of the court”) in a proceeding, whether instead of or in addition to its existing power to intervene?
We support the recommendation of Professor Rimmer that the QHRC should be able to appear as amicus curiae.
A10 Should there be any conditions on when, where and how the QHRC can participate in a proceeding before a court or tribunal?
The Commission has published appropriate guidelines as to when it will intervene. In our view the Commission is best placed to determine the circumstances in which it should intervene in proceedings.
A11 Should the QHRC’s intervention function in the ADA be repealed?
No.
Education
A12 What is your experience of the QHRC’s education services and are any improvements required?
We respectfully submit that the QHRC could be more active in education services including by facilitating events with schools, universities and the public generally. We would particularly welcome education services being introduced to encourage pro-bono legal assistance for complainants and respondents to human rights complaints.
Examining Acts and making submissions to public policy processes
A13 What should be the role of the QHRC in participating in public debate on policy and legislation development in Queensland?
In our view the Commission as the preeminent Human Rights Body in this State should be consulted by the government at the earliest possible opportunity when it is developing legislation or policy which is likely to significantly impinge human rights. Under our system, once the government has introduced legislation it is usually too late to change the legislation. For this reason, the Commission must be consulted at any early stage.
We are extremely disturbed by the current government’s apparent failure to consult with the Commission on significant legislation.
The Commission is in our view obligated to participate in public debate when government takes steps which infringe seriously on the rights set out in the HRA. That is the role of any authority of this nature.
A14 At what stage in the process for the development of policy and legislation should the QHRC be involved? For example, should the QHRC be involved earlier in the process?
See previous answer.
A15 Would earlier involvement of the QHRC in government decision-making processes compromise the independence of the QHRC?
No.
Promoting understanding and public discussion
A16 What is your experience of the engagement activities undertaken by the QHRC?
We were extremely disappointed by the Commission’s handling of the government's antisemitism and "adult time adult crime" legislation. Whilst we acknowledge that this was very early in the new Commissioner’s term, the commission had many senior staff who could have dealt with the issues.
We respectfully submit that the QHRC could be more active in education services including by facilitating events with schools, universities and the public generally. We would particularly welcome education services being introduced to encourage pro-bono legal assistance for complainants and respondents to human rights complaints.
A17 Are there any improvements you would recommend to the QHRC’s engagement activities, including ways to better promote a culture of human rights in Queensland?
See previous answer.
The current framework – potential reforms
A18 Do you support aligning the complaints framework in the ADA with the Draft Anti- Discrimination Bill 2024?
Subject to what follows we have no objection to the draft amendments to the ADA complaints framework.
We repeat our long-standing position of objecting to provisions that restrict the right of people to have legal representation. For that reason, our starting position is that everyone involved in the complaint process under the Act should be entitled to legal representation. If that position is rejected, then the claimant should have a right to legal representation, and the respondent should be able to seek leave from the Commission to be legally represented.
See also the answer to A4.
A19 Should there be any further or different changes to that complaints framework?
We have no further comment on this issue.
A20 Are there any changes that could be made to the process for making human rights complaints to public entities to better align it with other government complaints processes?
We do not accept that definition of human rights complaint ought to be limited and, in our respectful view, the answer to this question truly lies in the educational outcomes as to the different rights that ought to be enjoyed by Queenslanders and how redress can be sought (i.e. a human rights complaint may properly include privacy and workplace issues and that should not cause there to be any limit on seeking the QHRC’s assistance).
A21 Should there be a prescribed process for when a human rights complaint made to a public entity involves more than one public entity?
This should be a burden imposed on the respondent to determine which respondent(s) are responsible for the complaint.
A22 Should the HRA specify that a “human rights complaint” may only be made against a public entity, and not an individual in the employ of, or contracted to, that public entity?
The usual principle in our system is that individual public servants are not made liable for their decisions. Liability is borne by the government. We agree with this principle, unless the decision maker acts as an individual.
Agents and representative complaints
A23 Would a representative action for human rights complaints be necessary or desirable?
First, we would support the application of the provisions of the Anti-Discrimination Act for representative complaints to those under the HRA.
We remain of the view that representative proceedings would be useful in the context of human rights law. In our submission the proceedings arising out of Covid19 demonstrate the need for such a mechanism. As we previously submitted, the criteria contained in section 103B of the Civil Proceedings Act could be adopted.
It is also our view that it would facilitate the use of the legislation if organizations, including trade unions, could make representative complaints so long as the individuals consent to the representation. On that basis, we would submit that the requirements of the Victorian legislation for representative bodies to make applications should be reflected in Queensland law.
Requirement to engage with public entity
A24 Should a complainant be required to engage with the relevant public entity prior to complaining to the QHRC?
Yes, on the principle that it is usually better that complaints be resolved directly with the body. However, we would submit that the Commission should be given the power to accept a complaint which has not been made directly to the body in question in exceptional circumstances.
A25 Is the timeframe of 45 business days appropriate, including where a complaint engages multiple complaints frameworks?
We have no comment on this issue.
Form of complaint
A26 Should there be a prescribed form for human rights complaints for the purposes of the initial complaint to the relevant public entity and any subsequent complaint to the QHRC?
We do not support the creation of a prescribed form. It will only create difficulties of access. As stated above we have no objection to complaints being in a video or audio form. No doubt the Commission can publish guidelines as to what information must be included in the complaint, no matter what's its form.
A27 Should a person be able to make an oral complaint to the QHRC in exceptional circumstances?
See previous answer.
Powers of the QHRC
A28 Are the QHRC’s powers to enquire into human rights complaints sufficient for the purposes of its functions in dealing with and conciliating complaints?
Yes.
A29 Should the complainant’s consent be a prerequisite to any referral by the QHRC to another entity?
Generally, we accept that the Commission may refer a complaint to another entity. That referral should occur with the consent of the complainant and contain sufficient information regarding limitation periods and any difference(s) in action(s) that may be taken by the other entity.
A30 Should a time limit for the making of a human rights complaint be imposed and, if so, what is the appropriate timeframe and in what circumstances (if any) would it be appropriate to accept an out of time complaint? Should this be consistent with the provisions of the Draft Anti-Discrimination Bill 2024?
Yes, All systems of law recognize that there should be time limits placed on the capacity of one person to bring a claim against another. The exact period of any time limit on the bringing of a claim is always to some extent going to be arbitrary. On that basis, time limits under both pieces of legislation should be the same.
Progression of human rights complaints
A31 Do you support alignment, where appropriate, of the complaints processes under the HRA with the changes proposed to the ADA, while the complaint is being dealt with by the QHRC?
We have no objection to the alignment of the complaint processes between the two Acts.
Action on dealing with human rights complaint
A32 Should there be any changes to the reporting process where a human rights complaint is unable to be resolved at conciliation?
We support the process proposed in paragraphs 151 and 152 of the discussion paper.
Limitation on human rights
B1 Should any human rights be expressed as absolute and not subject to any limitation?
Yes, as recommended by the Brennan Inquiry[1]:
· The right to life. Every person has the right to life. No one shall be arbitrarily deprived of life. The death penalty may not be imposed for any offence.
· Protection from torture and cruel, inhuman or degrading treatment. A person must not be
- subjected to torture or
- treated or punished in a cruel, inhuman or degrading way or
- subjected to medical or scientific experimentation without his or her full, free and informed consent.
· Freedom from slavery or servitude. A person must not be held in slavery or servitude.
· Retrospective criminal laws.
- A person must not be found guilty of a criminal offence as a result of conduct that was not a criminal offence when the conduct was engaged in.
- A penalty imposed on a person for a criminal offence must not be greater than the penalty that applied to the offence when it was committed.
- If a penalty for an offence is reduced after a person committed the offence but before the person is sentenced for that offence, the reduced penalty should be imposed.
- Nothing in the foregoing affects the trial or punishment of any person for any act or omission that was a criminal offence under international law at the time the act or omission occurred.
· Freedom from imprisonment for inability to fulfil a contractual obligation. A person must not be imprisoned solely on the ground of inability to fulfil a contractual obligation.
· Freedom from coercion or restraint in relation to religion and belief. No person will be subject to coercion that would impair his or her freedom to have or to adopt a religion or belief of his or her choice.
· The right to a fair trial should also not be limited.
B2 Should any additional human rights be recognized in the HRA?
In supporting the original Human Rights Bill, the Council adopted the approach that it was politically expedient in terms of getting the legislation passed to argue for the inclusion in the Bill of a conservative and somewhat traditional set of rights. We remain of the view that that approach is the correct one to ensure the continuing acceptance of the Act.
It also has to be said that to include too much in a Human Rights Act would likely turn the instrument into a substance less piece of paper because Courts having no personal or institutional capacity to make decisions in relation to non-traditional rights, would in the end simply defer to the government.
However, as many have remarked, the set of rights is pretty useless if you do not have an environment in which you can enjoy them. To that end, we do support the inclusion in the Act of a right to a healthy environment.
We support the formulation recommended by the majority in the recent report of the Parliamentary Joint Committee on Human Rights in relation to its Inquiry into Australia's Human Rights Framework. That proposal is as follows:
Every person has the right to an environment that does not produce adverse health consequences in the following respects:
a) Every person has the right not to be subject to unlawful pollution of air, water and soil.
b) Every person has the right to access safe and uncontaminated water, and nutritionally safe food.
c) No unjustified retrogressive measures should be taken with regard to this right.
d) No one should be subject to discrimination regarding the realisation of this right [2].
B3 Should new human rights be included in the HRA to protect victims of crime?
The QCCL is fully supportive of the rights set out in the Charter of Victims’ Rights.
We strenuously oppose any proposal to grant victims of crime a right to equal access to the criminal process. This proposition has a seductive appeal to the community’s sense of fairness. However, in our submission it represents a category error of the most egregious type. Victims' rights serve a completely different purpose aimed at ensuring recovery for individuals, not protection against state power.
In the criminal process the state, with all its resources and powers, is attempting to deprive the accused/defendant, not the victim, of their liberty or property. As a consequence, the criminal process has established rules such as placing the onus of proof on the Crown, establishing the standard of proof as being beyond reasonable doubt, providing the accused/defendant with a right to silence and, to the extent it remains, the rule against double jeopardy.
Defendants are guaranteed these rights not because they are valued more than victims’ rights but because they are rights against the state. They serve as essential checks against government abuse of its power.
By way of contrast, victims’ rights serve a completely different purpose. They are aimed at supporting victims in the legal process, promoting their recovery and providing them with compensation. The accused have the rights they do because getting it wrong means we imprison innocent people.
A right of equal access for victims would create conflict between the rights of defendants/accused and victims and exacerbate inequality in the criminal justice system.
The criminal justice system cannot be turned into a vehicle for revenge or vengeance, which is likely to happen if people not subject to the duties of prosecutors to behave fairly and on the basis of an objective assessment of the case, are given control of or a say in the conduct of prosecutions.
However, if such rights are to be included in the Act, then it should be provided that the victim's rights shall be enforced "to the extent that they are not inconsistent with the rights of accused persons contained in this Act and any other Law”.
B4 If any new human rights are included, are there any unintended consequences in how those rights would operate alongside existing rights?
See answer to previous question.
Scrutiny of new legislation
B5 How has the process of scrutinizing new legislation under the HRA operated, and are any improvements required?
We submit that scrutiny of Legislation for compliance with the HRA would be improved if the Queensland Parliament followed the Commonwealth Parliament and created a separate Committee chaired by a non-government member to scrutinize legislation for compliance with the HRA.
Override declarations
B6 Should the override declaration provisions of the HRA be repealed?
In our submission to the Rimmer Review we argued for the retention of override power. Having considered the matter further, and particularly after discussions with the former Human Rights Commissioner, we have come to the view that the override provision should be removed. We have come to the view that the need to have to justify legislation before the Supreme Court should be sufficient.
Interpretation of laws
B7 Is it an appropriate function of the Supreme Court of Queensland to make declarations of incompatibility which have no effect on the validity of a statutory provision?
B8 Is it appropriate for the “dialogue model” between the courts and Parliament to remain?
B9 Should sections 53 to 57 of the HRA be repealed?
Whether or not a more serious approach is taken to incompatibility, we consider that the “dialogue model” remains important. Although this has not yielded legislative change as identified in the Discussion Paper, it provides a basis for continued pressure on government.
The Brennan Inquiry[2] found, and we agree that
As noted, the Committee's terms of reference require all options identified to preserve the sovereignty of parliament. Some critics of the Victorian and ACT models, which are based on the UK Human Rights Act, thought it improper that courts be asked to do anything more than their customary task of interpreting legislation. They thought it improper to have courts issuing declarations of incompatibility that might become political weapons in parliamentary debate if the government were not inclined to propose or support amendments to its impugned legislation. This, they argued, would be an unwarranted interference by the judiciary in the affairs of parliament. And they thought it inaccurate to describe such a declaration as part of a dialogue since the executive would simply be handed a judicial ultimatum on the floor of the parliament.
The Committee does not agree with this interpretation of the effect of declarations of incompatibility. Rather, it commends the process as being consistent with the traditional roles of the three arms of government. Should this aspect of the model prove impractical or unacceptable to legislators, consideration could be given to allowing members of parliament, rather than the courts, to trigger the legislative review process.
Under this model a court cannot strike down legislation. It can only make a ruling of incompatibility and refer the matter to parliament. This leaves in the end the final say on the issue to parliament. The parliament can do absolutely nothing, and the law will not change
It is often said that a Human Rights Act will involve the courts in areas of public controversy. The courts have always had to make difficult policy decisions. Some of them have been quite radical, including the reform of the common law to accommodate the laissez faire economic and industrial system of the 18th century. Even the daily work of the courts in determining negligence questions has the potential to draw the courts into controversial areas.
As the review notes similar legislation to the HRA has been in force in Australia for over 20 years and there is not one skerrick of evidence that any of the harms that its opponents said would occur, as adopted by the review, have come to pass.
B10 Should the interpretation provision in the HRA be retained and, if so, should it be amended to clarify its operation?
We have always understood Section 48 to have the meaning set out in paragraph 212(a) of the Discussion Paper. If there is any doubt about that proposition the legislation should be amended to make it clear that that is the result.
Such a provision is in our view entirely consistent with the common law presumption of legality, that “unless the parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the Courts will not construe a statute as having that operation” See Coco v The Queen (1994) 179 CLR 427.
B11 Should the referral process be repealed?
The argument set out in the discussion paper has convinced us that the referral power is unnecessary and may be repealed.
Obligations on public entities
B12 Should the “procedural” limb in section 58(1)(b) be retained? If it is retained, should the consequence of non-compliance with the “procedural” limb mean the act or decision is unlawful?
Yes.
From the beginning the HRA was intended to have the most impact by decision makers taking it into account in their daily decision-making process, not by litigation. But some mechanism needs to exist to give that aim legal force. This provision is that mechanism. In our view, this provision is fundamental to ensuring that public entities comply with the Act. In our view failure to comply with the Act should result in the act or decision being unlawful.
Remedies
B13 What remedies should be available for a contravention of section 58(1) of the HRA?
Our position has always been that there should be right of action to enforce the HRA. Therefore, we support the repeal of the piggyback provision and its replacement with a right of action.
The Council submits that there should be AN entitlement to bring an action for damages for breach of the Act in any competent State court.
As Emeritus Professor Croucher, the President of the Australian Human Rights Commission has said:
Monetary damages are currently available for breaches of rights protected by federal discrimination laws, including breaches by public authorities. Damages are also available in the UK, New Zealand and Canada. The Human Rights Acts in the ACT, Victoria and Queensland do not permit the recovery of damages where a breach of human rights has been found. The bottom line is that Australian state and territory jurisdictions are outliers for not making damages available where breaches have occurred.
The reason for excluding access to monetary damages in the states and territories was supposedly to avoid litigation and costs for government. But jurisdictions with a direct cause of action and monetary damages available have not seen ‘floodgates’ of litigation. Additionally, procedural remedies will not always be effective in remedying every kind of breach. When it is not appropriate to have a decision remade – a traditional administrative law remedy – but a person has suffered loss or damages, courts should be able to provide a remedy. Otherwise, individual will be denied justice. The remedies provision should ensure that monetary damages are an available option to the courts where it is the correct remedy in the circumstances – as is the case in relation to unlawful discrimination[3].
Furthermore, we support the introduction of a breach of the HRA as a separate ground of Judicial Review.
There is in our view no need for a provision as suggested in paragraph 254(b ) of the discussion paper. All of that would be supplied by the Uniform Civil Procedure Rules or the Judicial Review Act or both.
Comment such as those contained in paragraph 255 (c) of the discussion paper are repeated whenever there is debate over human rights legislation. Opponents either assert the fact there is no litigation is evidence that the legislation is unnecessary or alternatively the system is about to be flooded by excessive litigation.
There is no evidence to support the proposition that there has been excessive litigation
That said we accept that the piggyback provision has created more complex litigation. In Victoria it has instead resulted in lengthier and more complex cases.[4] But as noted above we have always argued for a right of action. In 2008, the ACT introduced section 40C(2) into their Charter which permitted an individual right of action. Based on research conducted by Professor George Williams[5], while there was a spike in the number of cases concerning breach of the Charter in 2009, this was not sustained. Prior to the introduction of section 40C(2), the percentage of ACT cases mentioning the Charter was just below 8%, and as of 2015 it sat just below 10%. This refutes arguments that an individual cause of action in a human rights charter would lead to a flood of litigation.
We support a right of action and a complaints mechanism. This will enable the system to accommodate large and small claims and allow for those cases where the nature of them demands vindication by judicial process.
Application of the HRA to courts and tribunals
B14 Should section 5(2)(a) of the HRA be repealed?
In so far as this relates to Part 3 we oppose it as we support the retention of declarations of incompatibility. In so far as it relates to part 2, assuming the analysis of the decision in Huang is correct we agree that it is not necessary
Definitions
B15 Should the definition of “court” be amended to include the Land Court, the Land Appeal Court, the Planning & Environment Court, the Mental Health Court, and the Industrial Court of Queensland?
Yes. If some courts are going to be covered, all should be.
B16 Should the definition of "discrimination" be amended to make it clear it is exhaustive?
Yes.
B17 Should section 9(4)(b) of the HRA be amended so that a court or tribunal is not a public entity for the purposes of the application of the Act irrespective of whether it is acting judicially or administratively?
The distinction between judicial and administrative functions of the Courts is both not new to the law and as the discussion paper says not without its difficulties. They were discussed by the High Court in Fingleton v R (2005) 216 ALR 474. Kirby J noted that immunities should always be as narrow as possible at paras 168 and 169. Perhaps the discussion by Gleeson CJ at para 53 of the decision provides guidance as to how to re draft the provision to more clearly delineate the immunity rather than repeal it, as it is not clear why staff of the Courts, for example, should not have the benefit of the HRA
B18 Do sections 9(1)(h), 9(2)(a) and 10 of the HRA require amendment to clarify what constitutes a functional public entity, for example non-government service providers?
In an age of increasing outsourcing of the provision of fundamental government services, it has always been our view that the legislation should apply to all bodies, whether public or private, which provide government services under contract with government or using government funds. If a broad definition is not used, the risk is the legislation will be increasingly ineffectual because its scope of application will reduce as outsourcing increases.
Amendments to the Corrective Services Act 2006 and the Youth Justice Act 1992
B19 Should section 5A of the Corrective Services Act 2006 and sections 263(7)–(8) of the Youth Justice Act 1992 be retained?
We maintain the position set out in the discussion paper. These provisions should be repealed. All the factors which these provisions allow the relevant decision-makers to take into account, are fully accommodated in section 13 of the Act. For that reason, as we said in our submission in relation to the original Bill, these provisions are unnecessary.
Further review of the HRA
B20 Is a further review of the HRA necessary and, if so, in what timeframe?
We do not comment on this question save that we make recommendations in this submission and, should further review be required to implement those recommendations, we would welcome further review.
Other issues
B21 Are there any other issues that you would like to raise about the operation of the HRA?
This point relates to the effect of the decision of the Queensland Court of Appeal in Hunt v Chief Health Officer [2022] QCA 263, which found that the directions of the Chief Health Officer in relation to covid were legislative in nature and therefore not covered by section 58 of the Human Rights Act.
It is our submission that the review ought to recommend an amendment to that section to make it clear that any direction, order or similar rule-making instrument which is not laid before Parliament or subject to disallowance by the Parliament is covered by that provision.
The structure of the Act is intended to preserve Parliamentary sovereignty. However, it is our view that the application of the Act to any order or direction or similar exercise of rulemaking power by the executive which is not approved of or in some way subject to parliamentary scrutiny, does not infringe on parliamentary sovereignty. It is our submission that the inability of individuals to challenge decisions of the Chief Health Officer to issue directions during the pandemic exposed a gaping hole in the Act, which needs to be closed if it is to be effective.
We agree with the following submission made to the Brennan Inquiry[6]:
Although most submissions focused on the consequences of incompatibility for primary legislation, the Committee also heard some views about the consequences of incompatibility for subordinate legislation, including regulations, which can be made where authorised in legislation.
At present, if a provision in a regulation goes beyond the scope of the legislation under which it is made or is not reasonably proportionate to the purpose sought to be achieved by the legislation, it will be invalid. Ron Merkel QC and Alistair Pound suggested that this should also apply to subordinate legislation that cannot be interpreted compatibly with the human rights in a Human Rights Act. In cases of incompatibility, subordinate legislation would not be the subject of a declaration of incompatibility but would be held invalid. They noted that this would ensure that the sovereignty of parliament (as expressed in a Human Rights Act) cannot be undermined by the executive government through subordinate legislation
Equitable outcomes
C1 Does the phrase "equality of opportunity" require any amendment?
The arguments advanced in the discussion paper reek of the sort of arguments advanced by the economist Hayek that phrases such as “social justice“ have no meaning. The reality is that expressions such as “social justice“and “equality of opportunity“ have no more nor less meaning than phrases such as liberty or democracy. Yet these were expressions, certainly the first one which Hayek used all the time
In our view the argument is a furphy though given a choice we would prefer to stick with “equality of opportunity”.
Prohibited conduct on the basis of sex
C2 Are there any unintended consequences of introducing a new prohibition on “harassment on the basis of sex”?
We agree with the views expressed in the Building Belonging report.
C3 Are there any unintended consequences of introducing a new prohibition on subjecting a person to a work environment that is hostile on the basis of sex?
Again, we agree with the views expressed in the Building Belonging Report
New attributes
C4 What are the unintended consequences of retaining the present definition of "irrelevant criminal record"?
The Council would argue that the punishment for an offence ends when the person leaves prison or completes whatever other punishment may be imposed. Furthermore, excluding convicted persons from employment and the like is not going to assist in their rehabilitation, quite the contrary it's going to increase their risk of reoffending.
In relation to paragraph 344 of the Discussion Paper whilst we accept the legal analysis of the effect of an acquittal, our position is that in a liberal society the presumption of innocence is not just a legal principle but a social principle. So that once the State has tried its best to convict someone of an offence the presumption of innocence is restored for the purposes of social justice.
The law is full of concepts such as "reasonableness" and "relevant" about which minds can differ. That does not stop those standards being applied by judges and other authorities every day of the week. This is not a criminal offence, and the issue could be addressed by providing a list of factors in the definition of relevance.
At the very least spent convictions should be covered by the Anti-Discrimination Act.
It is our view that the ground, whatever it is, should only apply in the areas of work and accommodation.
In relation to blue cards, whilst we consider it to be a departure from the principles relating to a spent conviction, we have accepted that the need to protect children justifies that departure.
C5 Are there any unintended consequences from retaining the proposed new attribute of "expunged conviction?
We support the expunged conviction proposal. The prohibition of homosexual relationships was always unjust, and steps should be taken to make sure that that injustice does not continue.
C6 Are there any unintended consequences of retaining the present definition of "irrelevant medical record"?
We agree with the views of the Building Belonging Report
C7 What are the unintended consequences of retaining the new attribute "a combination of two or more of any of the above attributes"?
We support the proposal as made in the Building Belonging Report to allow people to make complaints which allege discrimination based on a combination of protected attributes.
C8 Should the definition of “homelessness” in section 52 of the Respect at Work Act be repealed?
Again, we agree with the Building Belonging Report that homelessness does not need to be defined.
Other new and amended attributes
C9 Are there any unintended consequences of retaining any or all of the other additional new or amended attributes?
We query the appropriateness of adding appearance to the list of attributes.
It cannot be the case that having regard to beauty is necessarily immoral.
So far, there has not been an answer to the question, asked in our original submission which is: why should people who deem themselves to be ugly in some ordinary sense be entitled to redress in the form, for example of plastic surgery. What is to prevent someone who falls into that category claiming under this legislation that they are being discriminated against because some person with a serious disfigurement is entitled to plastic surgery and they are not? Such claims of course have implications for the allocation of scarce resources.
When does a person discriminate?
C10 Are there any unintended consequences of retaining the new definitions of “direct discrimination” and “indirect discrimination”?
We support the proposed new definitions. In particular we believe removing the need for a comparator is a critical reform.
Burden of proof
C11 Should the current burden of proof be changed to a ‘shifting’ burden of proof and, if so:
(a) should a ‘shifting’ burden of proof apply only to complaints of direct discrimination?
(b) what should a complainant be required to prove prior to the burden shifting to the respondent?
The question of where the burden of proof lies is at its most acute in the area of criminal law where there are a series of rules described as the principled asymmetry of the criminal law, which is designed to offset the power and resource imbalance between the accused and the State.
We accept that this principle is of less importance in the context of civil cases. But it is still an important point, particularly in the context of claims being made against small businesses with limited resources.
The fact that the employer is in exclusive possession of certain facts relevant to an allegation being made against it is referred to in the Building Belonging Report as an important reason for altering the rules on the burden of proof. Two points can be made about that. Firstly, it is not unusual that one party has control of information necessary to prove the case that the other party does not. This is why, of course, in civil proceedings there is disclosure. In addition, in an ordinary civil case the Courts already recognise that a persuasive burden lies on a party to explain the situation when they are the only party capable of providing an alternative explanation[7]
Secondly, we would submit that most people in our society would agree with the proposition that he or she who makes an accusation ought to prove the accusation.
For these reasons, we would not support an alteration of the burden of proof. However, if an alteration is to be made, we would support the American rule, namely the complainant must establish a prima facie case, then the respondent must provide evidence which could support a finding that there was a legitimate and non-discriminatory reason for their actions, and then the onus shifts back to the complainant to show that the respondent’s reason is a pretext for discrimination
Positive duty
C12 Are there any unintended consequences that may arise if the positive duty were implemented in Queensland?
We agree that a positive duty to eliminate discrimination is needed because the individual complaint process is inadequate to deal with systemic discrimination. A positive duty will put the focus on institutional issues which result in systemic discrimination.
However, you can only impose a duty on a person who has the necessary power and resources to comply with that duty. In our submission the only two areas of application currently listed in the Act which might have the power and resources are those in the areas of employment and education[8].
Furthermore, the law needs to recognise the difference in the capacity of employers and institutions of different size to be able to comply with the obligations. To that end, we support the approach taken in Victoria to defining the duty:
1. A person must take reasonable and proportionate measures to eliminate discrimination, sexual harassment or victimisation as far as possible.
2. In determining whether a measure is reasonable and proportionate the following factors must be considered—
A. the size of the person's business or operations;
B. the nature and circumstances of the person's business or operations;
C. the person's resources;
D. the person's business and operational priorities;
E. the practicability and the cost of the measures.
In order to protect the important right or freedom of speech, a further criterion should be added, namely, the right to freedom of expression found in section 27 of the Human Rights Act.
C13 Would it be appropriate that the QHRC to have a regulatory and enforcement function as contemplated by the positive duty provisions?
In our submission the Commission should have the power to initiate its own investigations into breaches of positive duties as it is best placed to tackle systemic investigations.
In one of the writer’s experience, many individuals facing complaints to the Commission are already of the view that the Commission has a conflict of interest in that in the perception of those individuals the Commission received the complaint, dealt with the complainant and then purports to conciliate the dispute. We are not suggesting any impropriety on the part of the Commission, but this is the perception in the minds of respondents. Therefore, it is our view that the Commission should not be further involved in the complaints making process by actively assisting complainants to put together their complaint. If such assistance is needed, government ought to fund a community legal service or similar body to whom the Commission can refer complainants for assistance in this regard.
Investigations
C14 Should the power to inquire into a complaint be separate from the QHRC’s investigative function?
C15 Should the QHRC have a power to investigate potential systemic contraventions of the ADA?
C16 Should this power be subject to any conditions, for example the Minister’s consent and the matter being of public interest?
C17 What powers should the QHRC have following completion of an investigation into potential systemic contraventions of the ADA?
As we have said, it is our view that the Commission should have power to investigate, by its own initiative, systemic contraventions of the Act. It is our submission that it is by definition in public interest that a systemic contravention of the HRA should be investigated. There should be no separate requirement that the investigation be in the public interest in relation to systemic contraventions. We do not see why the minister should have the power to veto Investigations by the Commissioner, be they in relation to systemic or non-systemic contraventions. These issues are not criminal offences
In our view, the appropriate outcome of an inquiry into a systemic breach of the HRA is the making of report to the Minister for tabling in Parliament. This is, in our view, another reason why there should be no veto, because the only outcome is a report to Parliament which we would expect would address systemic issues and not individual cases. We would support the Review recommending that the legislation prohibits any report into systemic issues from containing findings in relation to the conduct of individuals.
Guidelines
C18 Should the QHRC have an express power to issue guidelines, including at the request and cost of a person or entity with duties under the ADA?
C19 Should compliance with a guideline issued by the QHRC be a relevant circumstance that may be taken into account in a proceeding for contravention of the ADA?
Yes, in our view. The trend of government over the last 40 years to refuse to provide advice to people as to how to comply with the law e.g. in areas like safety has been mistaken. In our view government policy. would be better complied with if the government gave advice as to how to comply with it. It would be best if that advice were provided for free, at least to those who cannot afford it.
We do believe that compliance with government advice. should be taken into account in any proceeding for a contravention of the Act.
Vilification
C20 Are there any unintended consequences of prohibiting vilification on the additional grounds of sex, age, impairment and the updated definition of sexual orientation?
C21 Are there any unintended consequences of retaining the updated definition of “public act”?
C22 Are there any unintended consequences of retaining the objective incitement test in the new proposed section 124D of the ADA?
C23 Are there any unintended consequences of retaining the “harm-based” prohibition on vilification in the new proposed section 124C of the ADA?
In our view section 52A of the Criminal Code, formerly 131A of the Anti--Discrimination Act (QLD), is from a free-speech point of view a perfectly appropriate provision, which deals with serious conduct and impinges on free speech to a very limited and acceptable extent.
The need for aggravating factors and proof of incitement is intended to ensure that only conduct amounting to serious cases of racial vilification threatening violence is subject to criminal sanctions
As a matter of principle, generally, criminal liability should only be imposed where it is proved the person had a guilty mind. We acknowledge that the section extends liability to cases where the conduct is reckless. In this case we accept this lower standard having regard to the fact that it requires proof of threatening violence or inciting violence.
We do not support the proposed changes to it
We previously supported the removal of the requirement for the approval of the Director of Public Prosecutions or Attorney-General in order to commence prosecution under s131A. Having read the submission of our New South Wales colleagues on the same change in that State we have been convinced that the requirement should be reinstated[9]
Yours Faithfully
Michael Cope
President
For and on behalf of the
Queensland Council for Civil Liberties
30 October 2026
Angus Murray
Vice President
For and on behalf of the
Queensland Council for Civil Liberties
30 October 2026
[1] National Human Rights Consultation Report September 2009 (“the Brennan Inquiry”) at page 367
[2] Page 373
[3] “The Australian Human Rights Commissions model for a Human Rights Act for Australia” speech delivered on 31 October 2023 https://humanrights.gov.au/about/news/speeches/commissions-model-human-rights-act-australia
[4] Law Institute of Victoria, Submission No 79 to the Independent Reviewer, Review of the Charter of Human Rights and Responsibilities Act 2006 (Vic), 19.
[5] Professor George Williams AO, ‘Submission to Human Rights Act Inquiry’, 11 March 2016.
[6] Page 330
[7] Although it is a criminal case, the decision of the High Court in Weissensteiner v R (1993) 117 ALR 545 goes into some detail about the operation of this principle both in the civil and the criminal context.
[8] As we see it, the duty to make a reasonable adjustment is distinguishable because the category of disabled persons is a reasonably identifiable and much smaller than the society wide duty under discussion here
[9]. NSWCCL SUBMISSION NSW LAW REFORM COMMISSION-SECTION 93Z OF THE CRIMES ACT 1900 (NSW) 19 April 2024 https://assets.nationbuilder.com/nswccl/pages/6838/attachments/original/1716350787/2024.04.19_NSWCCL_Submission_NSW_Law_Reform_Commission_Review_s93z_Crimes_Act.pdf?1716350787