Mizner v State of Queensland (Queensland Corrective Services) and Smith [2022] QCAT 245

Date: 6 July 2022
Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer: Member Ann Fitzpatrick
Human Rights Act 2019 (Qld) Sections: ss 13, 15, 17, 25, 30, 48, 58, 59.
Rights Considered: Right to recognition and equality before the law, right to protection from torture and cruel, inhuman or degrading treatment, right to privacy and reputation, right to humane treatment when deprived of liberty.
Other Legislation: Anti-Discrimination Act 1991 (Qld) ss 7(h), 8, 11, 101, 136, 141, 174A; Corrective Services Act 2006 (Qld) ss 5A, 18, 319A, 319H, 319I; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 58, 59.
Keywords: Discrimination; Public Law Considerations

The case concerned an application for an interim injunction involving a ‘piggy-back’ claim under the Human Rights Act 2019 (Qld) on a legal action under the Anti-Discrimination Act 1991 (Qld). There was a serious claim to be tried in relation to the applicant’s claim as there was no evidence before the Tribunal as to whether the first respondent had fulfilled their substantive obligation to identify relevant human rights, set them out by reference to the facts, say how the decision will limit the human rights and say how the limits are reasonable and justified. The Tribunal also noted that it was bound to interpret section 59 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in a way compatible with human rights but, beyond that, was acting in a judicial capacity exercising a judicial power in its consideration of the grant of an interim injunction, with the relevant rights in the exercise of that power being the right to recognition as a person before the law and the right to a fair hearing. The Tribunal ultimately determined that the applicant was entitled to the interim injunction.

The case concerned an application for an interim injunction to restrain the respondents from taking any steps to place the applicant in a shared cell or otherwise compel him to share sleeping quarters with another prisoner until the applicant’s discrimination and human rights complaint had been heard and determined by the Tribunal, or until further order.

The applicant ‘piggy backed’ a claim for relief or remedy on a ground of unlawfulness arising under s 58 of the Human Rights Act 2019 (Qld) on their legal action seeking relief or remedy under the Anti-Discrimination Act 1991 (Qld): at [41]. The applicant argued that the respondents had failed to act or make a decision in a way that is not compatible with human rights or, in making a decision, to give proper consideration to a human right relevant to the decision: at [70].

Owen-Darcy v Chief Executive, Queensland Corrective Services¹ provides that the first respondent has ‘a substantive obligation to identify relevant human rights and set them out by reference to the facts, to say how the decision will limit the human rights and whether the limits are reasonable and justified’ by reference to the matters in s 13 of the Human Rights Act 2019 (Qld): at [73]. It was ‘possible such an analysis had been undertaken’ but it was not evident on the material before the Tribunal: at [73]. Due to the lack of evidence that there had been compliance with the Human Rights Act 2019 (Qld), there was a serious question to be tried in relation to the applicant’s claim: at [75].

Further, the applicant submitted that the Tribunal was bound by section 48(1) of the Human Rights Act to interpret section 59 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in a way compatible with human rights so that ‘significant weight is placed on the potential harm to the applicant, the potential limitations of his human rights and the inability for damages to address human rights breaches’: at [95]. Those matters had ‘formed part of the consideration of this matter by reference to the general law requirements’: at [95].

Beyond that the Tribunal was ‘acting in a judicial capacity exercising a judicial power in its consideration of the grant of an interim injunction’, with the rights relevant to the exercise of that power being the right to recognition as a person before the law and the right to a fair hearing: at [96]. Those rights had been applied ‘noting the legal representation of the parties and the full opportunity for the parties to make submissions and to file material’: at [96].

The Tribunal ultimately determined that the applicant was entitled to an interim injunction.

Visit the judgment: Mizner v State of Queensland (Queensland Corrective Services) and Smith [2022] QCAT 245

[1] [2021] QSC 273.