Items

• SBN v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 321
  This matter concerned an application filed by the respondent to dismiss the application made by the applicant (mother) to review a contact decision designed to facilitate contact between the applicant’s children. In the reasons for the decision, the Tribunal referred to the right to protection of families and children in the Human Rights Act 2019 (Qld) (sections 26(1) and (2)) to give context for the obligation to support the family and why the applicant was a person affected by the decision concerning contact with the child. The Tribunal did not engage in any substantive discussion of human rights. The respondent’s application to dismiss the applicant mother’s application was refused.
• SBM v Director-General, Department of Justice and Attorney-General [2023] QCAT 306
  SBM’s Blue Card was cancelled in 2014 and in 2015, SBM was convicted of several drug-related offences including trafficking. In 2020, SBM applied to have the negative notice against him cancelled but his application was refused. He then appealed to the Tribunal. The Applicant led evidence about steps he had taken since 2015 to assist his personal development and rehabilitation, such that he is free from drug dependence and has a strong support network. In outlining the legislative framework and role, the Tribunal acknowledged its obligations under the Human Rights Acts 2019 (Qld) as a public entity and noted the relevance of the Applicant’s right to privacy and reputation (section 25) and right to a fair hearing (section 31), as well as the rights of children generally (section 26). In affirming the decision not to cancel SBM’s negative notice, the Tribunal noted the paramount consideration to the welfare and best interests of a child, but did not include any discussion in respect of human rights in its substantive reasoning other than to assert that competing human rights had been evaluated (at [43]).
• Saunders v Department of Housing and Public Works [2022] QCAT 159
  The Tribunal was required to determine whether the time limit provided by s 38(4) of the Acts Interpretation Act 1954 (Qld) (‘as soon as possible’) applies as the time limit for a complainant to request the Office of the Information Commissioner to refer their privacy complaint to the Tribunal. It was concluded that s 38(4) does apply and that the imposition of this time limit is compatible with the right to privacy (s 25 Human Rights Act 2019 (Qld)). In this reasoning, the Tribunal had regard to s 48 of the Human Rights Act 2019 (Qld) which provides that all statutory provisions must be interpreted in a way that is compatible with human rights to the extent that it is consistent with their purpose.
• Sandy’s Swim Pty Ltd v Morgan [2022] QDC 131
  The case concerned a claim for damages of a breach of lease regarding a swimming pool. The plaintiff in his written submissions asserted that his right to fair hearing had been breached by the defendant’s solicitors through failing to facilitate the litigation proceeding expeditiously and at a minimum of expense. There was no direct engagement by the Court with human rights considerations.
• Sandy v Queensland Human Rights Commissioner [2022] QSC 277
  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].
• Ryle v Venables & Ors [2021] QSC 60
  The case involved a complaint of ‘reprisal’ contrary to the Public Interest Disclosure Act 2010 (Qld) and a complaint of impairment discrimination contrary to the Anti-Discrimination Act 1991 (Qld): at [2]. Both complaints were directed to the Anti-Discrimination Commission but were made after the exhaustion of the relevant statutory time limit: at [2]. The reprisal complaint was accepted by the first respondent acting as the delegate of the Anti-Discrimination Commissioner, but the complaint of impairment discrimination was rejected by the first respondent acting as the delegate of the Human Rights Commissioner on the basis it was out of time: at [6]. The application for judicial review was unsuccessful, as there was no error of law, no failure to exercise discretion, no failure to take into account relevant considerations and no taking into account of irrelevant considerations: at [92], [111], [115]. The Court outlined that the Human Rights Act 2019 (Qld) was passed to protect and promote human rights, citing section 3, while amending various statutes, including the Anti-Discrimination Act 1991 (Qld); that section 118 of the Human Rights Act 2019 (Qld) replaced the Anti-Discrimination Commission with the Human Rights Commission; that the office of the Anti-Discrimination Commissioner became the office of the Human Rights Commissioner; that the Human Rights Commissioner retained the rights and duties under the Anti-Discrimination Act 1991 (Qld) which had formally been held by the Anti-Discrimination Commissioner and that the Human Rights Commissioner also acquired new rights and duties under the Human Rights Act 2019 (Qld): at [4]-[5].
• Ryle v State of Queensland (Department of Justice and Attorney-General) & Pitt [2021] QIRC 307
  The case concerned a complaint accepted by the now Queensland Human Rights Commission out of time. This complaint revolved around allegations made to the court by a legal practitioner on behalf of the defendant which were of a nature that potentially represented misconduct within her employment relationship. This had prompted an investigation, where the applicant was swiftly and comprehensively cleared of any misconduct and impropriety. The case also concerned, inter alia, the secondary matter of a suppression of identity application made out of time. In considering this secondary matter, the Human Rights Act 2019 (Qld) was determined to have no application. Even if the proceedings did not pre-date the commencement of the Human Rights Act 2019 (Qld), section 9(4)(b) provides that a public entity, to fulfil section 9(1)(f) of the Human Rights Act 2019 (Qld), does not include a court or tribunal, except when acting in an administrative capacity, whereas here the Commission was a court of record where the substantive proceedings and the application for suppression involved an exercise of judicial powers: at [43]-[45]. Even if the Human Rights Act 2019 (Qld) did apply, the Commission considered that the decision including Ms Ryle’s name would not be an unlawful or arbitrary interference with her privacy or an unlawful attack on her reputation within the meaning of these terms as they appear in section 25 of the Human Rights Act 2019 (Qld): at [46]. The Commission subsequently refused the suppression of identity application made out of time: at [57]. The Commission also ultimately determined that it would be unreasonable to allow the complaint to succeed due to the absence of a compelling explanation for the significant delay, the length of the delay and the prejudice likely to be suffered by the respondents: at [236].
• RTM v The Queen [2020] QDC 93
  The applicant faced charges of indecent treatment of a child under 16 under care, maintaining a sexual relationship with a child, and three counts of rape. The applicant sought, pursuant to sections 614 and 615 of the Criminal Code Act 1899 (Qld), a no jury order in relation to the trial of these matters. The prosecution did not object to the application. Farr SC DCJ held that in an application of this nature, the principal consideration is whether a trial without a jury is in the interests of justice: at [5]. His Honour also highlighted the relevance of section 32(c) of the Human Rights Act 2019 (Qld), which provides that an accused person is entitled to a trial without unreasonable delay: at [5]. It was noted that the speedy resolution of criminal matters is in every party’s best interests, and that it is in the interests of justice to hear the trial as quickly as possible: at [6]. Due to the COVID-19 pandemic, jury trials in Queensland ceased in March 2020 and it was not known at the time of the application when they would recommence. His Honour remarked that ‘given the uncertainty as to when a trial by jury might otherwise be reached, and given the breadth of the term “in the interests of justice”, it is my view – and, particularly, of course, given that there is no objection to the application, that it would certainly be in the interests of justice in this matter for a trial to occur before a judge alone:’ at [6]. Therefore, the application was allowed and a no jury order was made in relation to the conduct of the trial.
• RSC v Director General Department of Justice and Attorney-General [2023] QCAT 344
  At the time of the application, the Applicant was a single mother of four children who occasionally cared for teenagers who needed support. She maintained registration as a teacher in Queensland, operated a tutoring business that extended discounted services to disadvantaged students, and had seven years of experience as a teacher and university tutor. The Respondent issued a negative notice on the basis of charges relating to cannabis-related offences arising from the execution of a search warrant on a single occasion. The Tribunal upheld the decision to cancel the Applicant’s blue card. In reaching this decision, the Tribunal noted the Applicant's right to privacy and reputation (section 25), and right to a fair hearing (section 31), as well as the rights of children generally (section 26) pursuant to the Human Rights Act 2019 (Qld) (HR Act). The Tribunal acknowledged that as a ‘public entity’, it was required to comply with section 58 of the HR Act; however, beyond acknowledging the existence of the rights, there was no discussion in respect of limitations on the Applicant’s human rights or the rights of the Applicant’s children.
• Rowe & Anor v Commissioner of State Revenue [2023] QCAT 46
  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.
• RNE [2022] QCAT 343
  The Tribunal recognised the right of persons not to have their privacy arbitrarily interfered with (s 25a), and that every child has the right to protection on the basis of being a child (s 26(2)): at [7]. Sections 25(a) and 26(2) of the Human Rights Act 2019 (QLD) were considered in relation to the making of a confidentiality order redacting RNE’s children’s names from publicly accessible documents. While the Tribunal found that proceedings should generally be open to the public, the circumstances did not justify the limitation of the rights pursuant to section 13 of the Human Rights Act 2019 (QLD): at [7] and [28]. The Tribunal made confidentiality orders and dismissed the application for a non-publication order.
• RLJ v Direct-General, Department of Justice and Attorney-General [2022] QCAT 137
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, RLJ. In ordering that the respondent’s decision be set aside, the Tribunal noted that the applicant’s rights to a fair hearing (section 31) and not to be tried or punished more than once (section 34) as well as the right to protect families and children (section 26) were relevant, but did not substantively discuss these rights.
• Rivers v State of Queensland (Queensland Ambulance Service) [2023] QIRC 124
  The case concerned an appeal of an internal review decision to uphold conditions preventing the appellant from returning to work while holding an exemption from the COVID-19 vaccination. The original decision maker acknowledged that the decision may impose a small limit on the right to equality and non-discrimination (section 15), freedom of movement (section 19), and taking part in public life (section 23), but that such limits were justified by the need to ensure the readiness of the health system in responding to COVID-19. The internal review decision-maker outlined that human rights factors were considered in the creation of the policy, and that, while the decision has the potential to limit the appellant’s human rights, those limits on human rights are justified. The Commission did not consider human rights, which it said could be pursued through other avenues, and found that the decision was fair and reasonable.
• River Glen Haven Over 50s Village [2021] QCAT 26
  Mr Peter Hajdu applied for an exemption from the Anti-Discrimination Act 1991 (Qld) (‘the Act’) on behalf of the River Glen Partnership (‘the applicant’). The application sought to keep the company’s trading name ‘River Glen Haven Over 50s Village’ on the grounds that the company had always advertised with this name, the advertising attracted their desired demographic, and it would be inconvenient and costly to amend their advertising material: at [1], [21]. Member Traves pointed out that one of the Tribunal’s functions under section 174A of the Act includes granting exemptions. More specifically, under section 113, on application, the Tribunal may exempt a person, people or class of people from the operation of a specified provision of the Act: at [2]. Member Traves also noted that before deciding an application, the Tribunal must give the Queensland Human Rights Commission (‘QHRC’) a copy of the application, a copy of the material filed in support of the application, and have regard to any submission made by the QHRC: at [3]. The primary issue before the Tribunal was whether the applicant could be exempt from the operation of section 127 of the Act which pertains to discriminatory advertisements. Member Traves held that ‘to publish or display an advertisement that describes the River Glen Haven accommodation as a facility for people over the age of 50 years would … indicate that a person intends to act in a way that contravenes [the Act]’ and this was ‘sufficient to constitute a breach of [section] 127’: at [18]. Member Traves further found that the applicant’s grounds for exemption were insufficient and the application was ultimately dismissed: at [25]. In light of the dismissal and his decision, Member Traves held that there was ‘no need to consider the submissions made by the QHRC in relation to the application of the Human Rights Act 2019 (Qld)’: at [25].
• Ritson v Ryan [2021] QCATA 100
  This was an appeal relating to a commercial dispute regarding refund fees for a pilot aptitude test: at [6]. The Tribunal ‘had in mind’ the right to a fair hearing both as a matter of procedural fairness and natural justice, and under section 31 of the Human Rights Act 2019 (Qld): at [98]. The requirement imposed by section 13 of the Human Rights Act 2019 (Qld), to only limit this right to the extent that is reasonably justifiable, was noted. However, there was no substantive discussion of human rights by the Tribunal.
• RFJ [2023] QCAT 69
  The case concerned applications made by DL (RFJ’s treating clinical psychologist) and CG (RFJ’s treating clinical psychiatrist) for interim orders seeking urgent cessation of the Public Trustee of Queensland’s appointment as administrator for RFJ for all financial decisions except for day-to-day finances and Centrelink payments. The appointment was made under the Guardianship and Administration Act 2000 (Qld) when RFJ was experiencing relationship breakdown and consequential complex financial and legal matters that exacerbated her mental health issues and impacted her capacity for informed decision-making. DL and CG each sought the urgent interim orders on the basis that RFJ could manage her own affairs and that the ongoing involvement of the administrator was eroding her assets via fees, impacting her mental health and preventing her from purchasing a new home. In deciding to refuse the orders, the Tribunal acknowledged that the ongoing appointment of an administrator for RFJ, against her changed views and wishes, would necessarily limit her human rights but concluded that the limitations were reasonable and justified in accordance with section 13 of the Human Rights Act 2019 (Qld). The Tribunal provided reasoning at [27]: “I am mindful that the Tribunal appointed an administrator for three years, on evidence that RFJ was incredibly vulnerable and suffering from an impaired decision-making capacity, after a hearing in which evidence was tested. On the limited and untested evidence before the Tribunal on an interim order application, those findings of impaired capacity, vulnerability, risk, and need, protected by the orders made should not easily be cast aside in the absence of urgent and compelling evidence to do so.”
• REN [2022] QCAT 313
  This case concerned a review of the appointment of a public guardian for REN made on 31 January 2020, for decisions about accommodation, health and service decisions. REN’s daughter, RAD expressed a desire to be appointed as guardian for REN at the hearing but had not lodged an application. The hearing was adjourned to ensure that all active interested parties had notice of RAD’s desired appointment. The Tribunal was satisfied that the medical evidence indicated REN’s diagnosis of dementia impairs their capacity for personal decision making. Member McDonald recognised that the Tribunal was subject to the Human Rights Act 2019 (Qld) and that REN’s right to freedom of movement (section 19), and their right to health services (section 37) under this act may be limited by the appointment of a guardian. However, the member considered section 13 of the Human Rights Act 2019 (Qld), concluding that the limitations to these rights posed by the appointment is both reasonable and justifiable. The Tribunal therefore ordered that SR and RAD be appointed jointly and severally as guardians for REN for the personal matters of accommodation and healthcare.
• Reef House Property Pty Ltd & Ors v Commissioner for Liquor and Gaming Regulation & Anor [2021] QCAT 383
  The applicant’s submitted that the grant of the licence was met with widespread community objection, that their interest will be adversely affected if the stay is not granted and that their business model will not survive if they are to be located adjacent to a premises with a commercial hotel licence: at [2]. The applicant further argued that the busy commercial hotel will interfere with their boutique upmarket accommodation based on relaxation, tranquillity and quiet, and that there are genuine public safety issues that have not been sufficiently addressed or considered: at [2]. The Tribunal considered evidence from MFB Properties (NQ) Pty Ltd regarding the effect of the stay if granted, including delayed recruitment impeding employment opportunities, the approaching easement of COVID restrictions, the significant effect on revenue, the alternate processes available if there were to be community interruption and the time and money put into obtaining the licence: at [7] - [16]. The Human Rights Act 2019 (Qld) was raised in relation to the Tribunal taking into account the potential human rights that may be impacted. The Tribunal briefly mentioned property rights (s 24) and right to privacy and reputation (s 26) that may be impacted, but was not persuaded that this was significant enough to demonstrate an immediate need for a stay: at [19]. The Tribunal refused the application for the stay in these circumstances: at [21].
• REB v Director-General, Department of Justice and Attorney-General [2020] QCAT 312
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, REB. In 2014, REB was convicted of contravening a Protection Order by committing acts of domestic violence against his former partner and her children. The Working with Children (Risk Management and Screening) Act 2000 (Qld), provides a blue card negative notice may be issued if a person is convicted of a ‘serious offence’ or in other exceptional cases where it is not in the best interests of children for a positive notice to be issued. REB was refused a blue card on the grounds that this was an exceptional case. The Tribunal noted that the ‘law requires that in considering whether to issue a person a positive notice for a “Blue Card”, the interests of children must take priority over an applicant’s interests’: at [33]. The Tribunal held that this was ‘consistent with human rights considerations’ and cited section 13 (human rights may be limited) and 26 of the Human Rights Act 2019 (Qld) (the right to protection of families and children): at [33]. The Tribunal confirmed the decision of the respondent to issue REB with a negative notice, on the basis that the Tribunal was not ‘satisfied that REB has addressed the specific risk factors or triggers for that offending behaviour’: at [36]
• Re: Rheinmetall Defence Australia Pty Ltd [2022] QIRC 440
• Re: Protech Personnel Pty Ltd [2022] QIRC 029
  Protech Personnel Pty Ltd (‘Protech’) was previously awarded a two-year exemption from the operation of subsections 14, 15, 15A and 127 of the Anti-Discrimination Act 1991 (Qld) in relation to s 7(a) in 2019: at [3]. In its renewal application, Protech submitted, inter alia, that women only accounted for 12% of the construction industry workforce, and Protech had collaborated with clients in Queensland in the development of programs to address the underrepresentation of women in construction to promote industry growth and safe workplaces. Protech submitted that it was partnering with a company (‘Roadtek’) to do a targeted recruitment drive to increase female representation. The Tribunal, following its own earlier decision in Re:Ipswich City Council, acknowledged that the Commission would be bound by section 58 of the Human Rights Act 2019 (Qld) as it was acting as a public entity in deciding whether to grant an exemption under section 113 of the Anti-Discrimination Act 1991 (Qld). In considering whether to grant the exception, the Tribunal identified that granting the exception may affect the right to recognition and equality before the law (section 15) of the Human Rights Act 2019 (Qld): at [22]. The Tribunal considered that if that right was affected by the granting of the exemption, there was no need to consider whether the granting of the exemption was reasonable and justified pursuant to section 13(2) of the Human Rights Act 2019 (Qld); a measure taken pursuant to section 15(5) was recognised to not be discrimination within the meaning of sections 15(3) or (4). The Tribunal was satisfied that the exemption did not limit human rights and granted the exception for a further three years: at [35].
• Re: Mackay Regional Council [2022] QIRC 064
  This case concerned an application by the Mackay Regional Council to receive an exemption under s 113(1) of the Anti-Discrimination Act 1991 (Qld) in order to recruit only people who identify as Aboriginal and Torres Strait Islander to apprentice/trainee positions. The Queensland Human Rights Commission made submissions highlighting that the terms of any exemption granted should consider the right to recognition and equality before the law under section 15(3) of the Human Rights Act 2019 (Qld). The Commission highlighted that any exemption granted would either constitute a special measure that did not limit human rights (under section 15(5) of the Human Rights Act 2019 (Qld)) or, if it did limit human rights, would require an assessment under section 13 of whether those limits were justifiable: at [9]. The Commission did not oppose the principle of targeting recruitment to groups who are under-represented in particular industries where it can be justified as a special measure under section 15(5): at [10]. In its decision, the Queensland Industrial Relations Commission noted its obligation to interpret the Anti-Discrimination Act 1991 (Qld) in accordance with human rights under section 48 of the Human Rights Act 2019 (Qld). Citing The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors [2020] QSC 54, the Commission interpreted this obligation as requiring that ‘the provisions must be interpreted, to the extent possible that is consistent with their purpose, in a way that is “compatible with human rights”’: at [34]. It further noted that the Commission acts in an administrative capacity when deciding exemption applications under the Anti-Discrimination Act 1991 (Qld), thus is obligated under section 58 of the Human Rights Act 2019 (Qld) not to make a decision that is not compatible with human rights and must not fail to give proper consideration to human rights relevant to the decision: at [21]. The Commission noted that the exemption would engage the human rights outlined in sections 15(3) and 15(4) of the Human Rights Act 2019 (Qld), in that ‘it would allow discriminatory conduct to take place affecting a person's entitlement to equal protection of the law without discrimination and a person's right to equal and effective protection against discrimination’: at [28]. However, the Commission considered that the exemption sought could be a measure within the meaning of section 15(5) of the Human Rights Act 2019 (Qld), which provides ‘that measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination’: at [30]. Referring to Lifestyle Communities Ltd (No 3) (Anti-discrimination) [2009] VCAT 1869, the Commission held that the measure ‘must be for the purpose of ameliorating disadvantage caused by discrimination and the persons or groups to be assisted or advanced must be suffering disadvantage from that cause’: at [31]. The Commission was satisfied that Aboriginal and Torres Strait Islander people are disadvantaged because of discrimination: at [33]. Thus, the exemption sought by Mackay Regional Council was a measure within the meaning of section 15(5), did not constitute discrimination, and would not limit a human right: at [36]. For these reasons, the exemption was granted.
• Re: Ipswich City Council [2020] QIRC 194
  Ipswich City Council sought an exemption pursuant to s 113(1) of the Anti-Discrimination Act 1991 (Qld) from the operation of the s 14 and s 15 of the Act, so it can undertake an affirmative action recruitment plan that targets only female truck drivers: at [1]. In deciding whether to grant an exemption, the commission considered itself bound by s 58 of the Human Rights Act 2019 (Qld) as they were acting in an administrative capacity: at [36]. The commission also noted that they must comply with s 48 in interpreting s 113 of the Anti-Discrimination Act 1991 (Qld): at [35]. The Commission identified that granting the exemption may affect the human rights contained in s 15(3) and 15(4) of the Human Rights Act 2019 (Qld), by affecting the person’s entitlement to the protection of law without discrimination and the person’s right to equal and effective protection against discrimination: at [50]. However, the commission stated that if the council can establish that the measure is within the meaning of s 15(5), the measure is not a discrimination within the meaning of s 15(3) and s 15(4), thus there is no need to consider s 13(2) of the Human Rights Act 2019 (Qld): at [52]. The Commission held that women who wish to be employed as drivers are disadvantaged within the meaning of s 15(5) of the Human Rights Act 2019 (Qld) due to discrimination: at [64]. As the measure does not constitute discrimination, the purposive construction of s 113(1) of the Act is compatible with human rights: [at 74]. An exemption for a period of three years was granted.
• Re: Cobham Aviation Services Pty Ltd & Ors [2022] QIRC 326
  The Commission considered itself bound by section 58 of the Human Rights Act 2019 (Qld) as it was acting in an administrative capacity as a public entity in deciding whether to grant an exemption under section 113 of the Anti-Discrimination Act 1991 (Qld): [22]. The Commission clarified that both the way in which the Commission made the exemption decision, and the exemption decision itself, must be compatible with human rights, and that proper consideration must be given to relevant human rights – to the extent possible consistent with its purpose: [33]. To determine whether a person’s human rights may be affected by the granting of an exemption under s 113(1) of the Anti-Discrimination Act 1991 (Qld), the Industrial Commissioner considered the effect of the exemption: [39]. Upon consideration, the Commissioner considered that the granting of the exemption would not interfere with the s 25 right to privacy in an arbitrary way: [43]. The Commission, however, identified that the granting of the exemption may affect the right to recognition and equality before the law (section 15 of the Human Rights Act 2019 (Qld)): at [44]. The Commissioner considered whether this human right was limited only to the extent that was reasonable and demonstrably justifiable in accordance with section 13 of the Human Rights Act 2019 (Qld): at [45]. The Commissioner considered that, in the circumstances, the limitation on human rights is reasonable and justified as it is appropriate for achieving compliance with requisite US export control laws: [57]. Likewise, the commissioner is not satisfied that any less restrictive or reasonably available ways existed to achieve that purpose: [55]. The Commissioner was satisfied that the exemption was compatible with human rights and granted the exemption to the Applicants for a period of five years: [72].
• Re Leidos Australia Pty Ltd [2021] QIRC 229
  This case concerned an application to grant an exception under section 113 of the Anti-Discrimination Act 1991 (Qld) so that the applicant could comply with US export laws in performing their contracted works with the Commonwealth of Australia, in particular the Department of Defence. These export laws would restrict, and in some cases prohibit, access to certain material by persons based on, or by virtue of association with, certain nationalities, citizenships and/or countries of birth. Leidos was required to access this material to carry out some of its contracted works. Thus, Leidos sought an exemption to conduct specific activities, which included, for example, restricting particular personnel from access to such material, in order to comply with these export laws. The Commission first considered that a decision pursuant to section 113 of the Anti-Discrimination Act 1991 (Qld) involves acting in an administration capacity as it does not involve the enforcement of existing legal rights or the making of a binding and authoritative determination between legal parties of their legal rights and duties according to existing legal principles: at [55]. Therefore, the Commission considered that section 58 of the Human Rights Act 2019 (Qld) applied to them when determining whether to grant an exception pursuant to section 113 of the Anti-Discrimination Act 1991 (Qld) and set out other relevant provisions, such as the provisions concerning right to recognition and equality before the law (section 15) and the right to privacy (section 25): at [56] - [60]. The Commission then considered that section 113 of the Anti-Discrimination Act 1991 (Qld) must be interpreted in a way that is compatible with, or most compatible with, human rights to the extent possible consistent with its purpose in accordance with section 48 of the Human Rights Act 2019 (Qld) and set out other relevant provisions: at [61] - [64]. The Commission accepted that ‘….the right to privacy might arise because Leidos seeks to use personal information including place of birth, nationality and citizenship details which may intrude on a person's privacy’: at [100]. However, the Commission considered that the possible interference could not be regarded as arbitrary, as ‘…It could not be said that by seeking the information in accordance with its obligations to act in compliance with the US export control laws, that Leidos is acting in a capricious or unpredictable way’ and that, ‘…given the interference is directly aligned with Leidos’ attempts to comply with the US export control laws and its contractual obligations…,’ the Commission did ‘…not consider that such conduct lacks proportionality to the end sought or was without justification’: at [106]. Therefore, the Commission did not consider that the right to privacy was engaged in the circumstances: at [107]. The Commission then considered that the right to recognition and equality before the law had been engaged in the matter and would be limited, so section 13 of the Human Rights Act 2019 (Qld) would need to be regarded: at [108] – [111]. The Commission noted that section 13(2)(b) of the Human Rights Act 2019 (Qld) provides that ‘the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom is a matter that must be considered when determining whether the limitation on a human right is reasonable and justifiable’: at [117]. The Commission considered that the purpose, which ‘includes utilising nationality and national origin information to make determinations about the engagement of Leidos' workforce,’ was a limitation ‘undesirable and inconsistent with a free and democratic society based on human dignity, equality and freedom’: at [118]. The Commission then determined these considerations would need to be weighed regarding the exemption’s purpose: at [119]. The Commission recognised that Leidos must comply with the US export control laws in order to perform some of its contracted work with Defence and other Commonwealth agencies: at [120]. The Commission also recognised that the exemption is important for allowing Leidos ‘to provide infrastructure to Defence which…is critical in ensuring Australia's defence and national security interests are met’: at [119]-[120]. The Commission said that the exemption not being granted to Leidos would mean that Leidos would “not be able to perform work, some of which relates to national security, required under its contracts (and future contracts) with Defence and other Commonwealth agencies”: at [120]. The Commission concluded there was ‘a clear relationship between the terms of the limitation and its purpose’; ‘the limitation helps to achieve the purpose for which it is sought’ and the ‘terms of the proposed exemption are connected to and provide a means by which the purpose can be achieved’: at [121] – [122]. The Commission also concluded that the terms of the exemption do not go beyond the purpose of the exemption as the conditions apply only to conduct where necessary to enable Leidos ‘to obtain and maintain US export licenses and approvals or to perform contractual obligations’ and provide that Leidos ‘will take all steps reasonably available to it to avoid conduct’ otherwise breaching the relevant Anti-Discrimination Act 1991 (Qld) provisions: at [123] – [124]. The Commission then considered that the limitations would not be reasonable or justifiable ‘if they go further than is necessary or…less restrictive alternatives [are] available’: at [125]. The Commission noted that ‘the scope of the exemption is such that it is only applied in circumstances where Leidos must comply with the US export control laws and in order for it to meet its' contractual obligations’ and that the Commission was not satisfied that ‘there is any less restrictive and reasonable available way to achieve the purpose’: at [129]. The Commission considered ‘the limitation in the circumstances of this matter to be legitimate and of sufficient importance to limit the human rights affected’ and that the limitations were ‘consistent with the purpose for which they are sought’ and were ‘proportionate to and appropriate for achieving that purpose’ so considered the limitation was reasonable and justifiable: at [134]-[135]. The Commission also noted that section 48 of the Human Rights Act 2019 (Qld) must be considered when considering the application of section 113 of the Anti-Discrimination Act 1991 (Qld) and that section 48(1) of the Human Rights Act 2019 (Qld) ‘does not authorise an interpretation of statutory provisions which is inconsistent with their purpose’ but rather, the provisions must be interpreted to the extent possible that is consistent with their purpose, in a way that is ‘compatible with human rights’: at [137]-[138]. Therefore, ‘the next step was to consider the matters that have traditionally been considered when granting an exemption’ pursuant to section 113(1) of the Anti-Discrimination Act 1991 (Qld): at [139]. The Commission ultimately concluded that it would be appropriate and reasonable to grant the exemption sought by Leidos: at [156].