Rowe & Anor v Commissioner of State Revenue [2023] QCAT 46

Date: 8 February 2023
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Acting Senior Member Fitzpatrick
Human Rights Act 2019 (Qld) Sections: ss 8, 13, 15, 48, 58
Rights Considered: Right to recognition and equality before the law
Other Legislation: First Home Owners and Other Home Owners Grants Act 2000 (Qld) ss 25, 59, 60; Queensland Civil and Administrative Tribunal Act (Qld) ss 18, 19, 24
Keywords: Discrimination; Public Law Considerations

This case concerned an application for review of a decision by the respondent to refuse payment of a HomeBuilder Grant to the applicants on the basis that the applicants did not meet the eligibility criteria. In affirming the respondent’s decision, the Tribunal noted the applicants’ rights to recognition and equality before the law (section 15), but found that, in the circumstances, any limitation of such was compatible with human rights because the Tribunal lacked discretion to make a different decision.

The applicants were refused payment under the HomeBuilder Grant scheme on the basis that both applicants were not Australian citizens at the time the application was made: at [10]. The applicants contended it was unfair that they had entered into a construction contract on the assumption that they would be able to access the HomeBuilder Grant based on information available to them at the time, only to later discover they did not meet the eligibility criteria: at [15]. The Tribunal accepted this was unfair but noted that it was necessarily confined to consideration of whether or not the eligibility criteria was met, and did not have discretion to account for unfairness: at [17]-[18].

On account of there being no submissions from the parties in relation to human rights, the Tribunal did not consider such ad nauseum. The Tribunal did, however, recognise that it was bound to comply with the Human Rights Act 2019 (Qld) (HR Act) and noted the applicant’s right to recognition and equality before the law (section 15) may be limited. The Tribunal found that any limitation is reasonable and justified on the basis that it could not make a different decision. That conclusion appears to misinterpret section 58(2) of the HR Act which instead provides that the obligations to act and make decisions compatibly with human rights, and give proper consideration to human rights, “[do] not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision...”

The Tribunal also considered the interpretive provision in section 48 of the Human Rights Act 2019 (Qld) but concluded that it was not engaged because there was no statutory ambiguity.

Visit the judgment: Rowe & Anor v Commissioner of State Revenue [2023] QCAT 46