I. Introduction
Under a ‘dialogue model’Footnote 1 of a bill of human rights, obligations are imposed on the three branches of government with the collective aim of respecting and protecting human rights. This model, in statutory form, has been progressively introduced in Australia in the Australian Capital Territory, Victoria and Queensland (‘the Australian Human Rights Acts’). When initially enacted, much of the attention from scholars and litigators was focused on the potential of the interpretive obligation, especially on the judicial branch, to reach human rights-compatible interpretations of legislation. However, as time has passed it is rather the conduct obligations, predominantly on the executive branch, which have proven the more successful avenue in human rights litigation. That is, the obligations on public authorities or public entities to act compatibly with human rights and give proper consideration to relevant human rights.
This article reflects on development of the jurisprudence on the conduct obligations under the Australian Human Rights Acts. It focuses on the operation of the conduct obligations and the principles surrounding them. The article examines the conduct obligations through the lens of four significant judicial review cases in recent years. Thompson v Minogue (‘Thompson’)Footnote 2 was about policy directions for random urine tests and strip searches for male detainees in a maximum security prison. Davidson v Director-General, Justice and Community Safety Directorate (‘Davidson’)Footnote 3 involved a detained person in solitary confinement, who was denied access to the general prison exercise yard. In Owen-D’Arcy v Chief Executive, Queensland Corrective Services (‘Owen-D’Arcy’),Footnote 4 another detained person was subjected to an extended period of solitary confinement, including a direction not to associate with others. Johnston v Carroll; Witthahn v Wakefield; Sutton v Carroll (‘Johnston’)Footnote 5 was a challenge against COVID-19 vaccination directions (so-called ‘vaccine mandates’) issued to state police and ambulance workers. In each of these cases, breach of the conduct obligations was found by the reviewing State superior court.
Part 2 of this article outlines the enactment, legislative drafting choices and policy rationale of the conduct obligations under Australian Human Rights Acts. Part 3 analyses two specific issues. First, the ‘pull’ of the obligation to act compatibly with human rights on review closer towards merits review, and the ‘push’ away from merits review through the concepts of weight and latitude – concepts which have now been rejected in Thompson. It examines how the courts have applied reasonableness and justification testing (‘proportionality testing’) in that context. Second, whether the factors under proportionality testing should apply as mandatory relevant considerations to the obligation to give proper consideration to relevant human rights. It suggests further consideration of how relief or remedy should be granted in that context. Part 4 concludes that despite these issues, the Australian Capital Territory, Victorian and Queensland jurisprudence has reached a certain level of maturity and relative consistency in the operation of the conduct obligations.
The analysis of the jurisprudence will also be potentially relevant to any proposal for a Human Rights Act either in another state and territory or at the federal level.Footnote 6 At the federal level, a recent Parliamentary Joint Committee on Human Rights inquiry has recommended the enactment of a national Human Rights Act, including conduct obligations similar to the Human Rights Act 2019 (Qld) (‘QLD HRA’).Footnote 7
II. The Conduct Obligations
The Australian Human Rights Acts impose conduct obligations on a ‘public authority’Footnote 8 or ‘public entity’Footnote 9 (‘public authorities/entities’). Public authorities/entities include, for example, public servants, ministers, police and local councils. They also include certain entities when they are performing functions of a public nature – what are sometimes known as ‘functional’ public authorities.Footnote 10 The conduct obligations were first enacted under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter’). Section 38 relevantly provides:
38 Conduct of public authorities
(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
…
Despite its negative framing, the rationale of s 38 was to impose proactive obligations on the executive to prevent human rights breaches from occurring in the first place.Footnote 11 The conduct obligations comprise of two limbs. The first limb, an obligation to act compatibly, imposes a substantive obligation. It is concerned with whether the outcome is compatible with human rights: ‘[w]hat matters is the result’.Footnote 12 The second limb, an obligation to give proper consideration, imposes a procedural obligation. It is concerned with whether human rights have formed part of the deliberative process, before an outcome is reached.Footnote 13 The extrinsic materials said that s 38: ‘seeks to ensure that human rights are observed in administrative practice and the development of policy within the public sector without the need for recourse to the courts’.Footnote 14 It was this embedding of human rights ‘in the area of administrative compliance that the real success story … lies’.Footnote 15
Although the ACT was the first jurisdiction to enact an Australian Human Rights Act, the Human Rights Act 2004 (ACT) (‘ACT HRA’) initially did not include any express conduct obligations. This omission was seen as ‘a major weakness of that Act’.Footnote 16 It had been assumed that public officials would need to consider human rights and act compatibly with them.Footnote 17 Following a twelve-month review of the operation of the ACT HRA,Footnote 18 express conduct obligations were enacted by the Human Rights Amendment Act 2008 (ACT) (‘2008 Amendment Act’).Footnote 19 A new Part 5A was inserted into the ACT HRA, which included s 40B. That provision was modelled on s 38 of the Victorian Charter.Footnote 20 It relevantly provides:
40B Public authorities must act consistently with human rights
(1) It is unlawful for a public authority –
(a) to act in a way that is incompatible with a human right; or
(b) in making a decision, to fail to give proper consideration to a relevant human right.
…
Most recently, the QLD HRA enacted conduct obligations under s 58. That provision is the most expansive of the conduct obligations under Australian Human Rights Acts, in terms of the legislative guidance provided. It relevantly states:
58 Conduct of public entities
(1) It is unlawful for a public entity –
(a) to act or make a decision in a way that is not compatible with human rights; or
(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.
…
(5) For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to –
(a) identifying the human rights that may be affected by the decision; and
(b) considering whether the decision would be compatible with human rights.
There are some relevant drafting distinctions in s 58, compared to its Victorian and ACT equivalents, which will be returned to later. But like the Victorian Charter and ACT HRA, Parliament’s intention was to change public sector culture.Footnote 21 The purpose of the conduct obligations under the QLD HRA was to ‘ensure that respect for human rights is embedded in the culture of the Queensland public sector and that public functions are exercised in a principled way that is compatible with human rights’.Footnote 22 Litigation before the courts for breaches of s 58 was ‘not the focus’.Footnote 23
Bills of rights, including those based on the ‘dialogue model’, have long existed in the common law world.Footnote 24 The Australian state and territory jurisdictions are latecomers to the bills of rights movement. Indeed, there remains no bill of rights at the federal level.Footnote 25 The Australian Human Rights Acts are also not the first to apply to the executive branch. The legislative drafters took ‘the lessons learnt from other jurisdictions’Footnote 26 – including Canada, Aotearoa New Zealand and the United Kingdom. Two things are unique about the Australian Human Rights Acts, when looking to those overseas precedents.
First, the Australian Human Rights Acts seek to make clear what obligations apply to the executive. This can be contrasted with the Canadian Charter of Rights and Freedoms Footnote 27 and New Zealand Bill of Rights Act 1990 (NZ) (‘NZ BORA’). Those bills of rights simply state, in broad applications provisions, that they apply to the ‘government’Footnote 28 or to the ‘executive’Footnote 29 branch. A report by Victoria’s Human Rights Consultation Committee (‘Victorian Consultation Committee’), which led to the Victorian Charter’s enactment, considered that it ‘should be as explicit as possible regarding the duties imposed on public authorities’.Footnote 30 In this respect, the closest comparator is the United Kingdom’s Human Rights Act 1998 (UK) (‘UK HRA’), which the Victorian Consultation Committee utilised as a reference point. The UK HRA contained an express substantive obligation.Footnote 31
Second, the Australian Human Rights Acts specifically impose a procedural obligation – the requirement to give proper consideration to relevant human rights. This express obligation is not present in any other bill of rights. Thus, it partly departed from the approach taken under the UK HRA. There, the courts have said ‘the focus … is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s [human] rights have been violated’.Footnote 32 As for the NZ BORA, the courts are still grappling with the absence of an express procedural obligation.Footnote 33
The conduct obligations under Australian Human Rights Acts apply to discretionary powers;Footnote 34 where the public authority or entity ‘has choices’.Footnote 35 It should be noted that they are subject to exceptions. They will not, for example, apply where a public authority/entity ‘could not reasonably have acted differently or made a different decision’,Footnote 36 such as where no discretion has been legislatively granted. Application of the conduct obligations would make no difference if the public authority/entity is already legislatively mandated to reach a particular outcome. To do otherwise would be inconsistent with parliamentary supremacy. Other exceptions, such as in relation to religious bodies, exist, which are not necessary to discuss here.Footnote 37
Breach of the conduct obligations does not necessarily result in an entitlement to bring legal proceedings or result in relief or remedy under the Victorian Charter and QLD HRA. They contain so-called ‘piggyback’ clauses,Footnote 38 which restrict both standing and the availability of relief or remedy. For example, s 39 of the Victorian Charter provides:Footnote 39
39 Legal proceedings
(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
…
The piggyback clauses have been strongly criticised for being ‘convoluted’Footnote 40 and ‘confusing’,Footnote 41 giving rise to several implications.Footnote 42 By contrast, the ACT HRA since the 2008 Amendment Act created an independent or standalone cause of action and, in respect of Supreme Court proceedings, confers a broad power on the Court to grant relief (except for damages).Footnote 43
Given the piggyback clauses under the Victorian Charter and QLD HRA, the most straightforward way in which a public authority/entity’s compliance with conduct obligations may be reviewed is through judicial review.Footnote 44 That is because ‘a person may seek “relief or remedy” in respect of decisions of public officials’ on judicial review ‘grounds of unlawfulness’.Footnote 45 Somewhat understandably then, the standard of review for compliance with the conduct obligations is most often compared and contrasted with standards of judicial review under administrative law. They too impose constraints on the exercise of public power. However, it should be borne in mind that there are significant differences between review under Australian Human Rights Acts and judicial review.Footnote 46
III. The Issues
This article now examines two particular issues arising from the recent jurisprudence. First, what I call the ‘pull/push’ effect in review of the substantive obligation in judicial review proceedings. Second, whether the proportionality factors under general limitations clauses should be mandatory relevant considerations under the procedural obligation. It should be noted that, to date, cases on the conduct obligations have only risen as far as the state and territory superior courts. There has yet to be a proceeding reach the High Court of Australia.Footnote 47 That means that many of the issues ventilated in the jurisprudence may be the subject of re-evaluation in a future High Court decision. There is also a significant issue which has been raised in recent cases, but remains somewhat unsettled. That is, whether the conduct obligations apply to the making of delegated legislation and to what extent.Footnote 48 That issue is beyond the scope of this article.Footnote 49
A. Preliminary Issue: Mutually Exclusive or Cumulative?
There is a preliminary issue which informs the two issues examined – how the conduct obligations relate to each other. There are interesting legislative drafting choices used in respect of conduct obligations under the Australian Human Rights Acts. Under s 38 of the Victorian Charter and s 40B of the ACT HRA, the substantive obligation refers to an ‘act’, whereas the procedural obligation refers to making a ‘decision’.Footnote 50 Act is defined as including ‘a failure to act’. A decision is not defined. The reason for this drafting distinction between acts and decisions is left unexplained in the extrinsic materials. This gives rise to the question which approach should be adopted – a mutually exclusive approach or a cumulative approach.
The ‘mutually exclusive’ approach was first raised by Kyrou JA (extra curially) of the Victorian Court of Appeal (‘VSCA’) (as his Honour then was).Footnote 51 If the obligations were mutually exclusive, then the substantive obligation ‘does not prohibit decisions which are incompatible with a relevant human right’.Footnote 52 In other words, the substantive obligation does not apply to decisions. His Honour noted that decisions are ‘the lynchpin of’ administrative law in Australia (but not suggesting that decisions cannot arise outside of administrative law).Footnote 53 Another implication, not raised by Kyrou J, was that the procedural obligation would not apply to an ‘act’, and so proper consideration would not need to be given to human rights.
However, the ‘cumulative’ approach is generally supported by the jurisprudence on the Victorian Charter,Footnote 54 and presumably the same applies under the ACT HRA.Footnote 55 Although, no view was expressed by the VSCA on this issue in Thompson.Footnote 56 Under the cumulative approach, the conduct obligations operate in conjunction with one another. This is sensible. A mutually exclusive approach would otherwise present an odd dichotomy. Decisions often involve subsequent implementation by acts, and acts are usually preceded by a decision to act.Footnote 57 The former is a practical reality.Footnote 58 The latter is borne out in the broad, ordinary meaning of the word ‘decision’.Footnote 59 The cumulative approach means that, in effect, the procedural and substantive obligations apply to both an act and a decision.
Under the QLD HRA, the substantive obligation refers to both an act and a decision.Footnote 60 Pointedly, the procedural obligation only refers to a decision. Therefore, contrary to the Victorian Charter and ACT HRA position, the potential dichotomy between acts and decisions is seemingly reinforced. Whether the conduct obligations operate mutually exclusively or cumulatively under the QLD HRA will depend on the circumstances.Footnote 61
B. Substantive Obligation
The jurisprudence has for some time, particularly in the Victorian Charter authorities, accepted that reviewing compliance with the conduct obligations is a more intensive standard than traditional grounds of judicial review. That observation applies to both the substantive and procedural obligations. In respect of the substantive obligation, proportionality testing plays a critical role when determining whether a public authority/entity has acted compatibly with human rights.Footnote 62 That testing is embodied by what are known as ‘general limitations clauses’ under the Australian Human Rights Acts.
For example, s 7(2) of the Victorian Charter provides:
7 Human rights—what they are and when they may be limited
…
(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including –
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
By contrast, the general limitations clause under the QLD HRA is said to be ‘more definitive’ in its factors, and ‘the balancing is more explicit’.Footnote 63 Section 13 provides:
13 Human rights may be limited
(1) 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.
(2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—
(a) the nature of the human right;
(b) 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;
(c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;
(d) whether there are any less restrictive and reasonably available ways to achieve the purpose;
(e) the importance of the purpose of the limitation;
(f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;
(g) the balance between the matters mentioned in paragraphs (e) and (f).
There is a question discussed further below as to whether drafting differences under the QLD HRA mean that these factors also apply to the procedural obligation.
1. General Principles and the ‘Pull/Push’ Effect?
The substantive obligation therefore involves a ‘high’Footnote 64 or ‘stringent’Footnote 65 standard of review. The general limitations clauses which impose proportionality testing provide for greater rigour and encourage or require explicit balancing. This edges the function of the courts closer towards merits review.Footnote 66 It ‘draws the court more deeply into the facts, the balance which has been struck and the resolution of the competing interests’Footnote 67 than, for example, what is now known in Australia as the judicial review ground of ‘legal unreasonableness’.Footnote 68 Whether there has been compliance with the substantive obligation is to be determined independently and objectively by the courts,Footnote 69 but the judicial role remains ‘supervisory, not substitutionary’.Footnote 70 Due to the constitutional limits of the courts’ role, ‘[r]elief cannot be granted simply because it takes a different view of the act or decision on the merits’.Footnote 71
As the nature of proportionality review under the substantive obligation draws the courts closer to (but not tipping into) merits review, until recently there has been a counter-balancing involved in the courts’ own role. As Conor Gearty has expressed it in the UK HRA context, with one hand claimants of human rights breaches are gifted with the doctrine of proportionality, but with the other hand, this is taken away by giving weight to the views of the decision-maker.Footnote 72 I call this the ‘pull/push’ effect. Previous Victorian Charter case law has suggested – consistently with the UK HRA approach – that ‘weight’ and ‘latitude’ are to be afforded to the decision-maker.Footnote 73 Whether such labels are really a euphemism for judicial deference is debateable.Footnote 74
Thompson, Davidson, Owen-D’Arcy and Johnston reinforced the existing jurisprudence across the three Australian Human Rights Act jurisdictions. The courts in those cases agreed that the substantive obligation, because of the involvement of proportionality testing, imposed a ‘heightened standard’ and ‘measure of stringency’ – requiring ‘a greater degree of scrutiny’.Footnote 75 The cases echoed earlier case law that the courts are to reach an independent and objective determination as to whether the substantive obligation is satisfied,Footnote 76 but that their role is still supervisory.Footnote 77 This exercise, the VSCA in Thompson clarified, is ‘neither judicial review nor merits review’.Footnote 78 It is indeed a middle path which the courts must tread. It is not merely about ‘the extent of power and the legality of its exercise’.Footnote 79 But nor is the court standing ‘in the shoes’ of the decision maker and determining the matter de novo.Footnote 80
While the notion of giving weight and latitude to decision-makers was approved in Owen-D’Arcy, the court was ambiguous on the issue in Johnston.Footnote 81 In Thompson they were rejected as a formal starting point. These were described by the VSCA as ‘imprecise’Footnote 82 and not ‘helpful’ concepts.Footnote 83 There was to be ‘no preconception’ that decision-makers should be given any particular weight or latitude.Footnote 84 There was no automatic ‘push’ to counter-balance the ‘pull’ of the substantive obligation. But the VSCA did not rule out the potential relevance of decision-maker’s views for the substantive obligationFootnote 85 (and interestingly this was also extended to the procedural obligation).Footnote 86 Expertise and experience may be taken into account, and given the weight required by the particular circumstances.Footnote 87 So the notion of weight is still there, but not latitude and not as a starting position. Whether this pushes review for substantive compliance closer towards merits review remains to be seen. After all, the degree of weight and latitude has always ‘depend[ed] on the context and circumstances’Footnote 88 and ‘var[ied] from case to case’.Footnote 89 It does not necessarily mean that courts will now adopt a more stringent approach to the evidence of decision-makers.
2. Application of Proportionality Testing
Dr Craig Minogue, the infamous ‘Russell Street bomber’, is serving a life sentence for murder in a maximum security men’s prison. In Thompson, he sought to challenge policy directions for random urine drug testing and highly invasive full strip searches automatically before testing. Over the course of his incarceration, Dr Minogue had been subjected to urine testing about 70 times, but never returned a positive drug test.Footnote 90 The policy of automatic full strip searching before random urine drug testing did not apply to female prisons.Footnote 91 Dr Minogue raised the conduct obligations and human rights, including the right to privacy and right to humane treatment when deprived of liberty. The Victorian Supreme Court (‘VSC’) at first instance found both policies were in breach of the substantive obligation.Footnote 92 However, this was partially overturned by the VSCA.
The VSCA overturned the finding by Richards J that random urine drug testing breached the substantive obligation.Footnote 93 Having rejected the preconceived concepts of weight and latitude, the VSCA gave the decision-maker’s views on random urine drug testing more weight, not less; compared to at first instance. Significant weight was given to the decision-maker, who had ‘extensive experience’ in prison management. His views on drug testing had been informed by ‘feedback’ (ie informal and unrecorded conversations with prisoners and prison officers),Footnote 94 which at first instance had been characterised as merely ‘anecdotal’.Footnote 95 It demonstrates that rejection of preconceived weight and latitude does not necessarily equate to greater rigour in examining the evidence of decision-makers.
However, the finding of breach regarding the automatic full strip searches was upheld by the VSCA. Less weight was given to the decision-maker’s views in this context. Mapping the VSCA’s reasoning onto the proportionality test, it found:
Importance of purpose of limitation: The overall purpose was ‘to ensure the security of the prison and the safe custody and welfare of prisoners’.Footnote 96 This was an important purpose, which ‘lies at the heart of the prison system’.Footnote 97 The more specific purpose was to prevent interference with the random urine drug testing samples.Footnote 98
Relationship between limitation and purpose: There was no supporting evidence that the limitation imposed by the full strip searches would be effective in achieving the purpose of preventing interference with testing samples.Footnote 99
Nature and extent of limitation: The full strip searches constituted a ‘severe limitation’ on rights. They were ‘extremely invasive and demeaning’.Footnote 100
Less restrictive alternatives: There was no evidence of the decision-maker having considered less restrictive alternatives.Footnote 101 The VSCA pointed to the strip search procedures for females as one possible alternative.Footnote 102 The bare assertion that full strip searches automatically before testing were ‘the only effective way’ was ‘conclusionary … and not adequately explained’.Footnote 103
In the Australian Capital Territory, Davidson was a successful (and relatively rare) case which primarily involved application of the interpretive obligation under the ACT HRA. However, the conduct obligations (and the right to humane treatment) were also relied upon. Mr Nathan James Davidson was sentenced for drug trafficking and stolen property offences. He was placed in solitary confinement over various periods, for violent assaults on other detained persons and starting a fire in his prison cell. Mr Davidson (and other detained persons in a similar position) was denied access to the general exercise yard. This was said to be for safety and operational reasons, including the lack of staffing and infrastructure to allow detained persons to be safely handcuffed or unhandcuffed when returning or entering the general exercise yard.Footnote 104 Under the prison operating procedure, Mr Davidson only had access to the small and covered rear courtyard adjoining his cell.
The Australian Capital Territory Supreme Court (‘ACT SC’) described the rear courtyard as ‘giv[ing] the impression of being indoors and specifically, of being in a cell’.Footnote 105 While in solitary confinement, Mr Davidson attempted suicide. The ACT SC held that the prison operating procedure was invalid for being beyond power.Footnote 106 Given this, the Court dealt with proportionality testing briefly.Footnote 107 The Court did not accept the safety and operational reasons proffered for denying access to the general exercise yard. These could be ‘readily overcome’ with sufficient resources.Footnote 108 Open air and exercise were ‘basic entitlements’Footnote 109 under the primary legislation and international human rights standards.Footnote 110
In Owen-D’Arcy, Mr Michael Owen-D’Arcy was sentenced to life for a ‘ferocious and sustained’ murder.Footnote 111 He was convicted for several other violent assaults committed in prison. Mr Owen-D’Arcy was placed on consecutive maximum security orders by the Chief Executive of Queensland Corrective Services and their delegates. He argued that the making of a further consecutive order was in breach of the conduct obligations, relying on the rights to protection from cruel, inhuman or degrading treatment, and to humane treatment when deprived of liberty. The further order included a direction that he was not permitted to associate with other detained persons without approval (‘no association direction’), and so the rights to peaceful assembly and freedom of association were also relevant. He had already been in solitary confinement for an extended period of time – over seven years.
In the judicial review proceeding, no additional evidence had been called on behalf of the Chief Executive, including whether there were any less restrictive alternatives available.Footnote 112 This appeared to be a litigation strategy.Footnote 113 A long-term treating forensic and clinical psychologist had recommended that certain strategies be developed for Mr Owen-D’Arcy’s progression.Footnote 114 Problematically, this advice ‘had fallen on deaf ears’, with a continued failure to adopt the recommendations.Footnote 115 In addition, the Queensland Supreme Court (‘QSC’) found insufficient weight had been given to the total length of solitary confinement, including the further period of the consecutive order.Footnote 116 As a result, there was an inadequate balancing between the importance of the limitation’s purpose (managing Mr Owen-D’Arcy’s risk of violence to others) and the importance of preserving the right to humane treatment when deprived of liberty.Footnote 117 The maximum security order was not proportionate. It made little difference that the QSC had accepted that weight and latitude was to be afforded to the decision-maker.
The cases of Thompson, Davidson and Owen-D’Arcy represent victories for the rights of detained persons (although for Thompson, it was only a partial victory for reasons discussed above). Traditionally, common law courts are reluctant to intervene on judicial review in the management of correctional facilities.Footnote 118 This has been described as a form of judicial deference, or taking a ‘“hands off” approach’.Footnote 119 An initially slow start to the Australian Human Rights Acts jurisprudence in the context of prisonsFootnote 120 is giving way to more recent cases that indicate they may be effectively used to hold correctional authorities to account.Footnote 121
C. Procedural Obligation
The second issue this article examines is the Human Rights Act jurisprudence on the procedural obligation, especially whether the factors under proportionality testing should apply as mandatory relevant considerations. In doing so, it considers the differences in legislative drafting between the ACT HRA and Victorian Charter on the one hand, and the QLD HRA on the other. It also suggests that in circumstances where the outcome is substantively compatible, the courts give closer consideration to whether there is utility in granting relief or remedy for breach of the procedural obligation.
1. Proportionality Testing?
A public authority/entity must give ‘proper consideration’ to a relevant human right. But what does that entail? Is it intended to simply pick up the standard of ‘proper, genuine and realistic’ consideration under the corresponding ground of mandatory relevant considerations in Australian judicial review jurisprudence?Footnote 122
It is now well established that the procedural obligation ‘demands a higher standard of consideration’ than mandatory relevant considerations.Footnote 123 That is because ‘[w]hat is required is a weighing up, or balancing, of human rights against countervailing public and private interests’.Footnote 124 Like the substantive obligation, the procedural obligation is ‘an obligation of some stringency’.Footnote 125 It is ‘intended to have a normative effect on the conduct of public authorities’.Footnote 126 Most of these principles were reconfirmed in Thompson.Footnote 127 Such principles have now been approved under the ACT HRA Footnote 128 and QLD HRA Footnote 129 jurisprudence. The VSCA in Thompson additionally said that compliance was based, as with the substantive obligation, on the court’s objective determination.Footnote 130 However, there is debate about whether proper consideration involves formal proportionality testing.
The inclusion of the procedural obligation under the Australian Human Rights Acts is traceable to the report by the Victorian Consultation Committee. That is where the concept of giving proper consideration to relevant human rights first appeared.Footnote 131 The Committee found there was ‘strong support for an obligation to be placed on all public authorities, including government departments, agencies and enterprises, to consider the [Victorian Charter] generally in their practices and procedures.’Footnote 132 It ‘believe[d] that the first step in cultivating a culture of human rights in government is to make human rights one of the considerations that officials must consider in their day to day decision making’.Footnote 133 However, acknowledging concerns around the traditional weaknesses of the judicial review ground of mandatory relevant considerations (‘paying lip service’; ‘little more than “box-ticking”’),Footnote 134 the Committee suggested human rights must be ‘properly’ considered.Footnote 135
(a) Victorian Charter and ACT HRA
Under the Victorian Charter and ACT HRA, the concept of proper consideration is not defined. Nor is it expressly tied to the general limitations clauses. Some early commentary suggested that the factors under the general limitations clauses could amount to considerations which must be taken into account. The general limitations clauses ‘provide the standard of “propriety”, giving the necessary content to the notion of “proper consideration”’.Footnote 136
However, ‘[s]omewhat controversially’,Footnote 137 that is not how the jurisprudence has developed. In an early and highly influential case, Castles v Secretary of the Department of Justice,Footnote 138 Emerton J of the VSC (as her Honour then was) said the procedural obligation was ‘intended to become a “common or garden” activity for persons working in the public sector, both senior and junior’.Footnote 139 It ‘should not be a sophisticated legal exercise’;Footnote 140 there is ‘no formula for such an exercise’.Footnote 141 It ‘need not involve formally identifying the “correct” rights’.Footnote 142 On review, it should not be ‘scrutinised over-zealously by the courts’.Footnote 143 The procedural obligation:Footnote 144
involve[s] understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests.
Emerton J then said:Footnote 145
it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.
The general tenor of the above passages is that they set a relatively low threshold for satisfaction,Footnote 146 although there have been exceptions in their application.Footnote 147 Proper consideration must be done ‘in a practical and common-sense manner’.Footnote 148 The passages in Castles ‘appear to draw upon some, but not all, of the factors’ under a general limitations clause, and ‘only in a broad sense’.Footnote 149 They do not address whether the limitation is for an important and legitimate purpose (eg s 7(2)(b) of the Victorian Charter), the rational connection between the limitation and its purpose (s 7(2)(d)), and any less restrictive alternatives reasonably available (s 7(2)(e)). Castles was taken in some subsequent jurisprudence to have bifurcated the procedural and substantive obligations ––the general limitations clause is only applicable to the latter.Footnote 150
Despite the highly qualified nature of the passages in Castles, the non-formulaic exercise of proper consideration has arguably become increasingly formulaic over time. Castles continues to be cited as authoritative, but the approach has subtly changed. This commenced in Bare v IBAC, where Tate JA of the VSCA considered that Castles outlined ‘elements which must be present’ to discharge the procedural obligation.Footnote 151 There was a solidification in HJ v IBAC, where the VSCA unanimously said:Footnote 152
For a decision-maker to give ‘proper’ consideration to a relevant human right in compliance with s 38(1) of the Charter, he or she must: (1) understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision; (2) seriously turn his or her mind to the possible impact of the decision on a person’s human rights and the implications for the affected person; (3) identify the countervailing interests or obligations; and (4) balance competing private and public interests as part of the exercise of justification.
As can be seen, what constitutes proper consideration is no longer couched in qualified terms (eg non-formulaic; sufficient in most circumstances if …). Castles has hardened into a test with four parts, consisting of matters the public authority/entity ‘must’ do. These are now being described in the jurisprudence as ‘steps’Footnote 153 or ‘limbs’.Footnote 154 These encompass, to some degree, the nature of the right (eg s 13(2)(a) of the QLD HRA), the nature and extent of the limitation (s 13(2)(f)), and balancing (s 13(2)(g)) under a general limitations clause. Accompanying this shift in approach was the introduction of the earlier mentioned notion that the procedural obligation was a stringent obligation. This poses an obvious tension with the notion that proper consideration is an obligation which should not be overzealously scrutinised.
Whether the proportionality factors under general limitations clauses are mandatory relevant considerations was an issue raised in Thompson. As noted earlier, the VSCA upheld a finding that the policy direction for random urine drug testing satisfied the substantive obligation, whereas the policy direction for automatic full strip searches did not satisfy the substantive obligation. But was the procedural obligation satisfied? At first instance, Richards J found that adoption of both policy directions did indeed breach the procedural obligation. Her Honour applied the s 7(2) factors under the Victorian Charter to the procedural obligation.Footnote 155 ‘Charter assessments’ undertaken in respect of the policy directions were ‘cursory’Footnote 156 or ‘inaccurate’,Footnote 157 and also did not consider the s 7(2) factors.Footnote 158 They were not ‘a thorough and well-reasoned consideration of relevant human rights’.Footnote 159
This was overturned by the VSCA on appeal. The VSCA confirmed that the general limitations clause did not apply to the procedural obligation.Footnote 160 Richards J had erroneously ‘conflated’ the evaluation required under the procedural obligation with that required under the substantive obligation.Footnote 161 The VSCA applied the ‘HJ test’,Footnote 162 for which the justificatory exercise ‘does not import’ the general limitations clause.Footnote 163 Only a ‘broad and general assessment’ is required.Footnote 164 The VSCA gave several reasons for this position.
First, it was consistent with the text. Unlike the substantive obligation, the procedural obligation makes no reference to the notion of incompatibility.Footnote 165 It does not say, for example: it is unlawful for a public authority … in making a decision, to fail to give proper consideration to incompatibility with a relevant human right. Second, it was consistent with the purpose of the procedural limb as described by Emerton J in Castles Footnote 166 (not a sophisticated legal exercise, with no formula for it). Third, there is a ‘need for flexibility’ in the test,Footnote 167 because the procedural obligation applies to ‘the vast variety’ of decision-making and public authorities.Footnote 168 Decisions are sometimes ‘repetitive or routine’ in nature, made by junior decision-makers, or in urgent situations.Footnote 169 The VSCA observed that the application of the general limitations clause may be helpful but not mandatory to public authorities when discharging the procedural obligation.Footnote 170
While the VSCA did accept that the ‘HJ test’ involved a higher standard than mandatory relevant considerations under judicial review,Footnote 171 it did not describe the procedural obligation as stringent. Perhaps that was intentional, as a ‘broad and general’ approach seemingly does not cohere with notions of stringency. Indeed, the VSCA, in my view, took a very low threshold approach to proper consideration when applied to the facts. It correctly accepted that there was a ‘serious drug-use problem’ at the prison, which was statistically higher than average.Footnote 172 However, it held that proper consideration had been given to both policy directions,Footnote 173 despite accepting that the decision-maker’s consideration of rights had been ‘at a fairly high level of generality’Footnote 174 and ‘not extensive’.Footnote 175 The VSCA acknowledged the decision-maker’s ‘long experience as a senior prison officer’.Footnote 176 It factored in that the decision-maker had relied upon the state-wide governmental ‘Charter assessments’.Footnote 177 However, recall that those assessments had been found at first instance to be ‘cursory’ or ‘inaccurate’.Footnote 178 In any event, the VSCA said, the decision-maker’s consideration was ‘additional’ to the analysis in those assessments.Footnote 179 But neither the decision-maker’s consideration nor the ‘Charter assessments’ were particularly comprehensive and rigorous.
In Davidson, the ACT SC implicitly approved the approach of Richards J in Minogue at first instance.Footnote 180 That case had been decided before the Thompson appeal was heard. Reasons were reserved and post-dated the Thompson appeal decision. However, whichever approach was adopted would have made no difference. The ACT SC found there was no evidence of consideration of the right to humane treatment when deprived of liberty, ‘let alone “proper consideration”’.Footnote 181 The issue of lack of fresh air and exercise through access to the prison general exercise yard had been complained of previously. The decision-maker was ‘on notice’ and ‘unreasonably ignored’ the issue.Footnote 182
Taking stock of the above discussion, it is somewhat understandable that the VSCA in Thompson reached the position that it did. It is true that, textually, the procedural obligation under the Victorian Charter (and ACT HRA) refers only to ‘a relevant human right’. It does not say, incompatibility with a relevant human right.Footnote 183 In addition, it is arguably consistent with the extrinsic materials, which the courts echo when they said that the HJ test cannot be satisfied by ‘[g]iving lip service’Footnote 184 or taking a ‘tokenistic”Footnote 185 approach to human rights.
On the other hand, there are several reasons why the procedural obligation should require mandatory consideration of the factors under the general limitations clauses. First, the text of the procedural obligation also says nothing of balancing – as per the HJ test. Extrapolating the VSCA’s own logic reveals the flaws in its position. If relevant human rights are the mandatory relevant considerations, that directs attention to the human rights themselves. For the most part, when human rights are set out under the Australian Human Rights Acts, they address matters of scope or content of the rights, not matters of balancing.Footnote 186 Ironically then, parts (3) and (4) of the HJ test, which deal with identifying and balancing competing interests, are not based on the text either. The justificatory exercise in part (4) comes from the general limitations clauses (‘reasonable [and] demonstrably justified’), not the relevant human rights.Footnote 187
Second, the general limitations clauses and the concept of proportionality it embodies is central to the Australian Human Rights Acts. Indeed, proportionality is ‘the orienting idea in contemporary human rights law’.Footnote 188 As rights under the Australian Human Rights Acts are not absolute and may be limited for legitimate reasons, the general limitations clauses set out the factors that ‘need to be taken into account in the balancing process’.Footnote 189 The procedural obligation must be read in that overarching context. Indeed, the rationale behind the specified factors under general limitations clauses – first introduced by the Victorian Charter – was to provide guidance foremost for government ‘on a day-to-day basis’, to make it ‘as easy as possible to apply’.Footnote 190 It was recognised that the Victorian Charter ‘will more often be interpreted within government than by the courts’.Footnote 191
Third, if proper consideration does not require mandatory consideration of the factors under general limitations clauses, a public authority/entity can be found to have given proper consideration to human rights, yet still be in breach in terms of substantive outcome. In Thompson, the VSCA considered this possibility ‘obvious’Footnote 192 and that is exactly what occurred in that case (in respect of the full strip searches). But this an incoherent and anomalous outcome. Consideration surely cannot be ‘proper’ if it leads to a defective result.Footnote 193 If a decision-maker has not undertaken the weighing and balancing exercise properly, then this leads to an incompatible outcome. The operation of the procedural obligation should be aligned with the substantive obligation. Otherwise, it would defeat the former’s purpose, which is to embed human rights considerations in the deliberative process to minimise human rights breaches occurring in the first place. The VSCA’s assertion of statutory purpose based on Castles is, in my view, a form of ‘bootstrapping’.
Fourth, there is an overlap in the evidence expected by the courts regarding compliance with the conduct obligations. In Thompson, the VSCA’s finding, that there had been breach of the substantive obligation in relation to the full strip searches, placed reliance on the decision-maker being unable to show that they had considered any less restrictive alternatives that might reasonably have been available.Footnote 194 This is of course one of the factors set out in the general limitations clauses, but not addressed by the HJ test. It suggests that, practically speaking, evidence of the specified factors being considered under the procedural obligation informs compliance with the substantive obligation.Footnote 195
Fifth, the need for flexibility in the myriad of public authority/entity decision-making is acknowledged, but overstated by the VSCA. Mandatory consideration of the factors under general limitations clauses can be supported by public sector training, guidance materials, and embedding human rights prompts into operational policies. The general limitations clause is designed to be easily applied on a daily basis across the public sector.Footnote 196 It is intended to provide ‘for a principled but flexible approach’ to limitations on human rights.Footnote 197 The jurisprudence also recognises that a general limitations clause allows for variable intensity on review.Footnote 198 A degree of flexibility would remain as to how detailed and thorough the process of proper consideration must be for compliance to be met.Footnote 199
Lastly, it is unhelpful and confusing, particularly for public servants, to apply two different tests for the conduct obligations – one for the substantive obligation that involves a full proportionality test and one for the procedural obligation that involves the HJ test. It might be said in reply that the HJ test is directed at the courts in conducting their review, rather than how public authorities/entities should discharge the procedural obligation. After all, the findings in Thompson do not prevent public authorities/entities from applying the general limitations clause in practice, as a tool to satisfy the procedural obligation.Footnote 200 But that ignores the influential guiding hand that court decisions provide.Footnote 201 To have a singular set of considerations for public authorities/entities, rather than a bifurcated approach, would provide for greater coherency. That is particularly so given the predominant view of the courts that the conduct obligations are cumulative.
In summation, it is unhelpful to have a ‘test’ for proper consideration which tentatively involves some balancing and justification, yet does not fully embrace proportionality. The courts should be ‘all in’ (or not). It might be said that the approach argued for risks bringing the role of courts closer to impermissible merits review, because proportionality testing is ‘more exact, and exacting, than a generalised assessment’.Footnote 202 However, it is already acknowledged that the procedural obligation requires a higher intensity of review than judicial review – due to the ‘weighing up, or balancing, of human rights’.Footnote 203 It is ‘in substance … a reasonable limits analysis’.Footnote 204 By requiring that public authorities/entities must consider the factors under general limitations clauses, this weighing and balancing exercise is regularised.
(b) QLD HRA
Under the QLD HRA, the procedural obligation is directly tied to ‘compatibility’ with human rights: s 58(5)(b). Further, the QLD HRA makes clear what constitutes compatibility with a human right. Section 8(b) states a decision ‘is compatible with human rights’ if it ‘limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13’. Section 13 is the QLD HRA’s general limitations clause, with the factors set out in sub-section (2).
These departures in legislative drafting are potentially very significant. Section 58 is not a ‘codification’ of the Victorian jurisprudence.Footnote 205 Section 58(5)(b) potentially makes the specified factors in the general limitations clause mandatory relevant considerations. This logically follows when read with ss 8(b) and 13(2). The notion of ‘compatibility’ calls up formal proportionality testing. Such an approach would go further than the Victorian Charter and ACT HRA procedural obligations.Footnote 206 Against this, there is a difference in the wording to the chapeau of the general limitations clause in s 13(2) (‘the following factors may be relevant’) compared to that under the Victorian Charter (‘taking into account all relevant factors’) and ACT HRA (‘all relevant factors must be considered). It could be said this implies that consideration of all the factors is not mandatory under the QLD HRA.Footnote 207 However, the use of the word ‘may’ in s 13(2) is unlikely to allow ‘a wholly permissive authorisation to select only one or other factor, whatever or whichever’.Footnote 208
There has not been a substantial shift in the QLD HRA jurisprudence on the procedural obligation. Despite noting the drafting differences in s 58(5), the QSC has continued to apply or has not clearly departed from the HJ test.Footnote 209 In Owen-D’Arcy, there was a disconnect in the court’s reasoning. The QSC cited Richards J’s approach with approval, yet applied the HJ test.Footnote 210 In Johnston, the QSC seemed to hedge its bets between the two approaches.Footnote 211 The jurisprudence should be clarified such that the s 13(2) factors are mandatory relevant considerations.
2. Other Drafting Distinctions – QLD HRA
The conduct obligations under the QLD HRA can be contrasted with the Victorian Charter and ACT HRA in other respects. The conduct obligations will sometimes but not always operate cumulatively.Footnote 212 As discussed earlier, s 58(1) suggests that decisions will be held to a higher account than acts,Footnote 213 because the procedural obligation does not apply to acts.Footnote 214
Section 58(5)(a) also states that proper consideration includes ‘identifying the human rights that may be affected by the decision’. This has been interpreted as requiring the public entity to identify the ‘correct’ human rights as part of the procedural obligation.Footnote 215 This is in contrast to the position in Castles under the Victorian Charter.Footnote 216 In Owen-D’Arcy, the QSC held that the decision-maker had failed to correctly identify a relevant right. The reasons for decision stated that, in making a further maximum security order, the right to humane treatment when deprived of liberty had been considered.Footnote 217 As for the no association direction, only the rights to peaceful assembly and freedom of association were considered.Footnote 218 The failure to expressly identify the right to humane treatment as relevant in that context also (and possibly the right to protection from cruel, inhuman or degrading treatment),Footnote 219 was fatal to the decision’s lawfulness. It meant that the procedural obligation had been breached.Footnote 220
Nevertheless, this approach has been walked back in subsequent QLD HRA jurisprudence.Footnote 221 The particular reasoning in Owen-D’Arcy might also be considered somewhat harsh. A maximum security order under the relevant Act was the overarching decision,Footnote 222 whereas the no association direction formed part of the terms of that decision.Footnote 223 Could it not be said that the right to humane treatment had already been considered as part of that overarching decision? Does every direction attached to that decision need to repetitively reference the right to humane treatment? After all, the rights to peaceful assembly and freedom of association were the rights ‘particularly’Footnote 224 relevant to the no association direction. In any event, the QSC recognised elsewhere the consideration that had been given was ‘superficial at best’.Footnote 225 That would be a s 58(5)(b) issue, rather than a s 58(5)(a) issue.
3. Discretionary grant of relief or remedy
In the United Kingdom, we have seen that the UK HRA does not have an express procedural obligation. Nor does it have an explicit general limitations clause. However, the issue of whether proportionality considerations are mandatory relevant considerations (in respect of certain qualified rights) has been raised and rejected. The courts said it ‘would introduce “a new formalism” and be “a recipe for judicialisation on an unprecedented scale”’.Footnote 226 How might this be safeguarded against under the Australian Human Rights Acts? The relief or remedy that can be granted for breach of the conduct obligations is recognised as discretionary.Footnote 227 One potential answer is for closer attention to be paid to the utilityFootnote 228 of the relief or remedy sought,Footnote 229 especially for non-declaratory relief and where both conduct obligations have been raised.
For example, in a recent NZ BORA case, the Aotearoa New Zealand High Court boldly found an implied procedural obligation to give consideration to human rights, for which relief could be granted for failure to comply.Footnote 230 The Court, in deciding whether to grant relief, said it must have a ‘possible practical value’.Footnote 231 That was particularly so where there is an error in the deliberative process, but ‘the substantive … outcome is sufficiently clear’.Footnote 232 A stricter approach to utility may have assisted in Johnston, where the QSC found there was a breach of the procedural obligation in imposing COVID-19 vaccination directions on state police workers. Injunctive relief was granted (because of the ongoing threat of disciplinary action), despite the QSC finding that the directions were substantively compatible with human rights.Footnote 233 The result was considered satisfactory, but the procedure was not.Footnote 234 If the result was sufficiently clear,Footnote 235 then there was little practical utility in granting that injunctive relief.Footnote 236
This approach would still give the procedural obligation work to do, even where the result is clear and there is no real prospect of a different decision being made.Footnote 237 The procedural obligation would have a normative effect in developing a human rights culture in the public sector. It would impose expectations that substantive compliance is principled and reasoned, not fluked. The level of detail and rigour in giving proper consideration would also inform the weight to be given to the outcome reached by the decision-maker, when determining substantive compliance.Footnote 238 A declaration of breach of the procedural obligation may still be granted by the courts – as a form of vindicationFootnote 239 and sending a message to public authorities/entities to ‘do better’.
IV. Conclusion
This article identified and explored two contestable controversies under the Australian Human Rights Acts jurisprudence. First, Thompson represents a shift from a previously settled position, rejecting the notion that a preconceived weight or latitude should be provided to the decision-maker when the courts are reviewing compliance with the substantive obligation. But it is not a foregone conclusion that this will make substantive obligation review more ‘merits review-like’. In any event, Thompson, Davidson and Owen-D’Arcy demonstrate the potential effect of the substantive obligation. It has empowered courts to more willingly intervene in an area in which they are traditionally reluctant to tread – the management of correctional facilities.
Second, this article examined the operation of the procedural obligation, including potential differences arising from legislative drafting choices under the QLD HRA. It argued for proportionality factors to be treated as mandatory relevant considerations under the procedural obligation. That position was adopted in Thompson at first instance and implicitly approved in Davidson, but rejected in Thompson on appeal. Despite some initial movement in Owen-D’Arcy, nuances in the drafting of the QLD HRA’s procedural obligation should have, but did not, result in a significant departure from the Victorian Charter jurisprudence. The article recommended that a stricter approach to utility be adopted in the discretionary grant of relief or remedy for breach.
Despite the issues above, the jurisprudence on the Australian Human Rights Acts has collectively reached certain developmental milestones and relative consistency in the principles regarding their operation. Thompson provided long anticipated clarification from the VSCA on the conduct obligations, particularly the procedural obligation. Owen-D’Arcy was the first significant case under the QLD HRA on the conduct obligations generally, whereas Davidson was the first significant case under the ACT HRA on the procedural obligation specifically. To date, Johnston has been the only successful challenge to the lawfulness of COVID-19 restrictions in a superior court in Australia. In each of these cases, the courts found breach of one or both of the conduct obligations. In doing so, they demonstrated significant cross-fertilisation between the three jurisdictions, with the Victorian Charter jurisprudence taking a leadership role. Optimistically, the jurisprudence illustrated significant cohesion for the operation of the conduct obligations going forward, as an integral feature of the Australian Human Rights Acts.
Postscript: in Berih v Homes Victoria (No 4) [2025] VSC 169, the Victorian Supreme Court applied Thompson to find that Homes Victoria had given proper consideration to and acted compatibly with the right to home, in implementing a major Victorian government program to retire and redevelop public housing towers in Melbourne – necessitating mass relocation of its residents. An appeal of that judgment was dismissed by the Victorian Court of Appeal in Mallard v Homes Victoria [2025] VSCA 339.
Acknowledgements
This article is based on a presentation delivered to the Australian Institute of Administrative Law (‘AIAL’) on 22 November 2023. Thank you to the AIAL for the opportunity to present and attendees for their feedback. Thanks also to Professor Matthew Groves, the Honourable Pamela Tate AM KC, Mr Kent Blore and two anonymous reviewers for their comments on earlier versions of this article, and Ms Joanna Davidson for insightful discussions on aspects of the topic.
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