PROPORTIONALITY UNDER THE HUMAN RIGHTS ACT 2019 (QLD): WHEN ARE THE FACTORS IN S. 13(2) NECESSARY AND SUFFICIENT, AND WHEN ARE THEY NOT?

• Date: 01 April 2022
• Author: Blore, Kent
• Published date: 01 April 2022
• Author: Blore, Kent

Contents I Introduction II Early Case Law on s 13: Why the Question Arises III Section 13 Imports a Structured Proportionality Analysis IV The High Court on Why Structured Proportionality Is Required V The Exceptions That Prove the Rule: When the s 13(2) Factors Are Not Mandatory A Internal Limitations B Absolute Rights C Developing a Categorisation Approach D Procedural Exceptions to the General Rule VI With One Exception, the s 13(2) Factors Are Sufficient VII Conclusion I Introduction

The Human Rights Act 2019 (Qld) ('Human Rights Act') seeks to introduce a 'culture of justification'. (1) Now, whenever an act, decision or statutory provision in Queensland limits a human right, that limit must generally be justified according to the test set out in s 13 of the Human Rights Act. The overall test of justification set out in s 13(1) is whether the limit on a human right is 'demonstrably justified in a free and democratic society'. (2) While that language may be 'lofty', (3) it was borrowed from the equivalent provision in Canada, (4) which has long been held to incorporate a structured proportionality analysis. (5) That is an analysis used in many human rights systems worldwide and involves four sequential steps: (i) legitimate aim or proper purpose, (ii) suitability or rational connection, (iii) necessity or the minimal impairment principle, and (iv) fair balance. (6) Were there any doubt that s 13 was intended to import structured proportionality, s 13(2) then sets out a number of factors to assist in answering the overall question of justification in s 13(1). Those factors spell out the four sequential steps of structured proportionality.

However, the factors are prefaced with a statement that they 'may be relevant. (7) On a cursory reading of s 13, the word 'may' might be interpreted as meaning that the factors are optional considerations and that other considerations which are not listed in s 13(2) might be relevant. Part II of this article canvasses the limited case law to date on s 13 of the Human Rights Act in order to show that the question of whether the factors are mandatory and exhaustive is a live one, calling for an answer.

This article contends that the word 'may' does not mean that the justification analysis can be undertaken by randomly picking and choosing which factors in s 13(2) to apply, or even by applying some entirely extraneous factor not mentioned in s 13 at all. This is for three reasons. First, the text of s 13 and its historical background reveal that it is intended to import structured proportionality. Part III of this article seeks to demonstrate this by tracing the origins of the text used in s 13(1) to the general limitations clause in Canada (via the general limitations clauses in the Australian Capital Territory ('ACT') and Victoria), and the embrace of structured proportionality by the Supreme Court of Canada. The article then looks to the South African origins of the factors in s 13(2) before setting out the important ways in which those factors depart from the South African general limitations clause in order to align even more closely with structured proportionality.

Second, quite apart from the text of s 13, as a matter of logic, each of the steps of structured proportionality is relevant to a conclusion that a limit on human rights is justified. Each step tests the reasonableness of the limit on human rights from a slightly different angle, such that skipping a step means failing to test the reasonableness of the measure from that angle. If a person only applies some of the factors in s 13(2) they might reach a conclusion that the limit is justified when that conclusion is not truly open--which would be obvious to the person if they only stopped to apply each of the factors in s 13(2). Alternatives to structured proportionality serve to entrench the risk of such an oversight. In particular, a global judgment about justification would reduce the analysis under s 13 to a matter of impression. Such an approach would lack transparency and undermine the culture of justification which the Human Rights Act seeks to introduce. Likewise, the alternative of applying a categorisation approach--that is, only applying some of the factors in s 13(2) in certain categories of cases--would mean skipping factors which might reveal that the limit is not justified. As will be seen, a categorisation approach may have its place, but it should only be applied where selecting the right category would always produce the same outcome as applying all the factors in s 13(2) in any event.

In Part IV, this article seeks to show why structured proportionality is superior to any alternative approach to justification, if not logically required for any justification analysis. Part IV does this by reference to insights from the High Court over the last seven years in the context of the implied freedom of political communication, and more recently the freedom of interstate trade, commerce and intercourse under s 92 of the Constitution. Without the guidance of an express general limitations clause like s 13 of the Human Rights Act, the High Court has had to work from first principles to arrive at the conclusion that structured proportionality is the only viable option for justifying limits on the implied freedom and s 92 of the Constitution. The lessons learned in the context of the constitutional freedoms apply equally to other rights and freedoms that are relative in nature, including the human rights enshrined in the Human Rights Act.

The third reason why the word 'may' does not allow a smorgasbord approach is that 'may' has other work to do. Having established that the factors in s 13(2) are all necessary as a general rule, in Part V, the article explores a number of possible exceptions to that rule, which would give the word 'may' in s 13(2) some work to do:

1 where an internal limitation in a human right modifies the test of justification;

2 where an absolute right such as the freedom against torture is limited;

3 where the courts develop a categorisation approach for a particular right or a particular kind of limit;

4 where a public entity gives proper consideration to human rights notwithstanding that they fail to engage in a structured proportionality analysis; and,

5 where a statement of compatibility accompanying a Bill adequately justifies a proposed limit on human rights notwithstanding that the statement does not apply structured proportionality.

Importantly, each of these exceptions is itself proportionate, and thus coheres with the logic of proportionality underlying s 13. Because the word 'may' has other work to do, we are not forced to read s 13(2) as though it offered a smorgasbord of factors to be considered or dismissed at will according to one's idiosyncrasies or arbitrary whim.

Finally, in Part VI the article addresses the converse question of whether the factors in s 13(2) are sufficient. Despite the deep history of thinking about structured proportionality around the world, with one exception, theorists and judges have not managed to think of any additional element of justification which has not already been included in the list of factors in s 13(2). The one exception is already spelled out in s 13(1). In addition to being proportionate, a limit on human rights must be 'under law' (8)--that is, authorised by law. Unless one of the exceptions identified in this article applies, the factors in s 13(2) are logically required and sufficient to answer the question of whether the limit on human rights is justified.

II Early Case Law on s 13: Why the Question Arises

Since the Human Rights Act commenced on 1 January 2020, Queensland courts and tribunals have been grappling with the justification analysis called for by s 13. Generally, courts and tribunals have simply recited s 13 and then focused attention on only one or two factors in s 13(2), (9) or even ignored all of the factors altogether. (10) To date, only one case has delved into what is required by s 13 in any depth: Australian Institute for Progress Ltd v Electoral Commission (Qld) ('AIP'). (11)

AIP concerned the proper construction of the prohibited donor provisions of the Electoral Act 1992 (Qld). (12) On any available interpretation of the provisions, prohibiting people such as property developers from making political donations would mean less money would be available to fund political campaigns, and therefore limit the freedom of expression enshrined in s 21 of the Human Rights Act as well as the right to take part in public life enshrined in s 23. (13) The limit on these human rights enlivened the obligation in s 48 of the Human Rights Act to interpret the statutory provisions, if possible, in a way that is compatible with human rights.

As Applegarth J noted in AIP, '[t]he words "compatible with human rights" require consideration of ss 8 and 13' of the Human Rights Act. (14) Section 8 defines 'compatible with human rights' as meaning either that the measure does not limit a human right, or that the measure does limit a human right but in a way that is 'reasonable and demonstrably justifiable' under s 13. (15) Section 13 then 'provides a framework for deciding when and how a human right may be limited in a way which does not result in incompatibility'. (16) Subsection (1) 'sets out the basic test for how a human right may be limited'. (17) It provides that '[a] human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom'. Subsection (2) then sets out a number of factors which 'may be relevant' in answering the overall question of justification in sub-s (1), and which are 'intended to align generally with the principle of proportionality'. (18)

The equivalent legislation in the ACT and Victoria--the Human Rights Act 2004 (ACT) ('ACT Human Rights Act') and the Charter of Human Rights and...