Sandy v Queensland Human Rights Commissioner [2022] QSC 277

Date: 9 December 2022
Court/Tribunal: Supreme Court of Queensland
Judicial Officer/Tribunal Member: Williams J
Human Rights Act 2019 (Qld) Sections: ss 8, 13, 28, 58
Rights Considered: N/A
Other Legislation: Anti-Discrimination Act 1991 (Qld) ss 6, 7, 8, 9, 10, 11, 101, 134, 135, 136, 138, 139, 140, 140A, 141, 142, 154A, 155, 156, 164A, 166, 168, 168A, 169, 170, 174A, 204, 205, 208, 209, 210; Corrective Services Act 2006 (Qld) s 194; Judicial Review Act 1991 (Qld) ss 4, 5, 20, 21, 23
Keywords: Discrimination; Public Law Considerations

The applicant sought judicial review in relation to a decision by the Commissioner of the Queensland Human Rights Commission to reject a discrimination complaint, including on the ground that the decision was unlawful under section 58 of the Human Rights Act 2019 (Qld). The Court did not analyse this ground in depth as it did not apply to the decision of the Commissioner which was beyond power under section 136 of the Anti-Discrimination Act 1991, and therefore not within the scope of section 58 of the Human Rights Act 2019 (Qld).

The applicant was a 30 year old Aboriginal man who had been diagnosed with gastric cancer. He made an application for exceptional circumstances parole for the purpose of receiving culturally appropriate medical care in the community, which was rejected by the parole board. The applicant lodged a Human Rights and Anti-Discrimination complaint with the Queensland Human Rights Commission. The Commissioner accepted the Human Rights complaint, but did not accept the Anti-Discrimination complaint. The application in this case was for judicial review of that decision on grounds including that the decision was unlawful for the purposes of section 58 of the Human Rights Act 2019 (Qld).

Section 58 of the Human Rights Act 2019 (Qld) makes it unlawful for a public entity to fail to give proper consideration to a human right relevant to decision when making that decision. The court noted the operation of section 59, which allows a person to seek relief under the Human Rights Act 2019 (Qld) by ‘piggy-backing’ that claim to another action seeking relief for unlawfulness: at [94]. They noted that section 59 should not be read unduly narrowly, and the ability to include a ground based on human rights unlawfulness does not depend on the ultimate success of the other grounds: at [99]. However, the Court found it ‘illogical to undertake … analysis’ in relation to the human rights ground under section 58 as the act or decision of ‘not accepting’ the complaint by the Commissioner was beyond power under the Anti-Discrimination Act 1991 (Qld) and therefore not within the scope of section 58: at [107], [109].

Visit the judgment: Sandy v Queensland Human Rights Commissioner [2022] QSC 277