The Human Rights Act 2019 (Qld) was assented on 7 March 2019. It introduces 23 human rights into Queensland, drawn from international treaties, to protect and promote civil, political, economic, social and cultural rights. The provisions which establish the Human Rights Commission are due to commence from 1 July 2019 with the remaining provisions expected to be operational from 1 January 2020.

This update discusses the 'right to life', which is considered the most fundamental of all human rights.

Key objectives

One of the key aims of the Human Rights Act 2019 is to bring human rights to the forefront of decision making in the Queensland public sector. Its objectives will be achieved by:

• requiring a 'compatibility statement' to accompany all new legislation tabled in the Parliament (s38)
• requiring every statutory provision in Queensland, to the extent possible consistent with their purpose, to be interpreted in way that is compatible with, or most compatible with human rights (s48)
• making it unlawful for public entities, including public sector health services, to act or make decisions that are not compatible with the human rights, or that fail to take the human rights into proper consideration when making decisions (s58)
• to empower the Supreme Court to make 'declarations of incompatibility' if a statutory provision cannot be interpreted in a way that is compatible with a human right (s53)

Entities can 'opt in' to the human rights obligations if they are not otherwise captured by the new laws.

The right to life

The right to life is described in section 16 of the Human Rights Act as both a positive and a negative duty.

Every person has the right to life and has the right not to be arbitrarily deprived of life.

The positive duty requires a public authority to protect the lives of people within its care. The negative duty imposes an obligation to ensure that an action or decision does not result in an arbitrary deprivation of life. The term 'arbitrarily' has been interpreted to mean 'unjustly' and 'unfairly' and includes a test of necessity and proportionality. Any circumstances leading to a deprivation of life must be clearly established by law, capable of being articulated with certainty, and subject to due process.

Compatibility with other legal frameworks

We have set out below some areas of interest, relevant to public sector health services, that may engage the right to life and which have the potential to challenge compatibility with the right.

Assisted dying

Commentary surrounding the right to life usually involves a discussion about the right to enjoy a certain quality of life, with dignity, individual respect and autonomous decision making. The same is true of arguments surrounding assisted dying. From 19 June 2019, citizens of Victoria, at the end of life and who meet strict eligibility criteria, will be able to request access to voluntary assisted dying. There is an obvious potential tension between these laws and the human right to life.

The statement of compatibility that was tabled by the Victoria government when introducing the voluntary assisted dying bill made the following observations in arguing that any limitation on the right to life imposed by the laws was reasonable and demonstrably justified in a free and democratic society:

• every human life has equal value and a person's autonomy should be respected;

• a person has the right to be supported in making informed decisions about their medical treatment and is entitled to genuine choices about their treatment and care;
• in other jurisdictions, such as Canada, an assisted dying regime can be compatible with the right to life, provided that there are sufficient safeguards to prevent abuse of vulnerable people;
• the voluntary assisted dying regime provides a compassionate option for people who are suffering and are dying, but also safe, with effective protections for persons, health practitioners and the community.

The assisted dying legislation was also thought to be compatible with, and to uphold, other rights in the Victorian human rights charter, also found in the Queensland Human Rights Act, including the promotion of the right to privacy (s25), which incorporates recognition of personal dignity and autonomy, as well as potentially the right to liberty and security (s29). Put another way, to deny a person who is suffering at end of life the right to determine the manner and timing of their death may impose an unreasonable and unjustifiable limitation on those rights. To the extent that voluntary assisted dying laws may impact and limit the rights of others, such as a health practitioner's own freedom of thought, conscience, religion and belief (s20) about assisted dying, the legislation allows for conscientious objection. The Victorian assisted dying laws are limited only to citizens of Victoria which may be argued to limit the protected human right of equality before the law (s15) but this was thought reasonable given the likelihood of an existing therapeutic relationship with the health practitioner providing end of life care.

In Queensland, there is currently a Parliamentary Enquiry into End of Life, Palliative Care and Voluntary Assisted Dying. The enquiry has received over 550 submissions from the public, most of which were supportive of a right to voluntary assisted dying. If a bill is to be tabled in future about this issue in Queensland, it will require a compatibility statement in compliance with the Human Rights Act.

Historically, authorities have declined to recognise the right to life as encompassing the right to die on one's own terms. It has been said that a protection of the right to die is inconsistent with the protection of the right to life and the values which make it an absolute right. In recent times, authorities have taken a more expansive approach. In a case involving the French assisted dying laws, the European Court of Human Rights decided that in dealing with end of life situations, States have some discretion in terms of striking a balance ‘between the protection of patients’ right to life and the protection of their right to respect for their private life and their personal autonomy.

In the Queensland context, it will be important to ensure that voluntary assisted dying is not an alternative to palliative care services and there are strong safeguards to ensure that a person is making their own decision to seek voluntary assisted dying without undue influence or pressure. These themes were dominant in the submissions to the Queensland Parliamentary Enquiry. The current position appears to be, that, when carefully designed to balance the patient's right to life and access to treatment, Queensland laws may allow for assisted dying without arbitrarily contravening the right to life.

Termination of pregnancy

The right to life is often invoked in arguments against the termination of pregnancy, which has been the subject of recent and significant law reform in Queensland with the introduction of the Termination of Pregnancy Act 2018.

At first glance, the right to life might seem incompatible with the right to terminate a fetus, however, it is not inconsistent with the general approach to exclude unborn children from the protections of human rights legislation in other jurisdictions. The Human Rights Act provides that all 'individuals' in Queensland have the human rights, defined by the Acts Interpretation Act 1974 as a 'natural person'.

If there was any doubt, a specific carve out has been included in section 106 of the Human Rights Act:

Nothing in this Act affects any law relating to termination of pregnancy or the killing of an unborn child...

We expect that a similar approach would be taken to the protection of live sperm and ovum bearing in mind the legislative frameworks that apply to their use under the Transplantation and Anatomy Act 1979 and Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003.

Medical treatment and access to therapeutic drugs

A critical question arises in terms of how the right to life relates to the treatment and care of the terminally ill. Because the right to life requires public bodies to protect the lives of all citizens, the European Court of Human Rights has found that a public authority may violate the right to life if it undertakes to provide a particular form of treatment over others or if it limits treatments on an arbitrary or discriminatory basis.

In the UK, it was held that the application of a policy which resulted in the denial of a person's access to potentially life-saving drugs was a limitation on that person's right to life: (R (Rogers) v Swindon NHS Primary Care Trust [2006] 1 WLR 2649). The Court stopped short of requiring the therapy to be given to the person but advised the policy should be changed. This is consistent with other rulings which allow a State to undertake resource allocation and permit limitation where it can be justified.

In Australia, issues may arise in relation to which treatments receive a rebate under the Medicare scheme or the Pharmaceutical Benefits Scheme.
Similarly, where a patient is in a vegetative state, the right to life does not impose a duty to keep the patient alive for an indefinite period. It is not inconsistent with the right to life to withdraw artificial nutrition or hydration where to continue care serves ‘absolutely no purpose other than the very short prolongation of the life of a dying patient who has slipped into his final coma and who lacks all awareness of what is happening'.

What happens if a human right is breached?

There is no standalone legal remedy following a finding that a human right has been breached. The legislation does not create any new offences at law or any independent statutory cause of action, and does not provide a mechanism for financial compensation. Instead, contravention of a human right may be raised as a ground in proceedings for any other cause of action that may exist against the entity, for example, judicial review proceedings. This is referred to broadly as a "piggy-back" cause of action (s59).

The Human Rights Act does include a mechanism for resolving complaints by way of a direct complaint to the Queensland Human Rights Commission, which will be established to replace the Anti-Discrimination Commission Queensland from 1 July 2019 (s64). There is a requirement for an aggrieved person to first raise their complaint with the entity concerned (s65). If the complaint is not resolved locally, it may then be dealt with by the Human Rights Commission. The Human Rights Commission can direct parties to participate in a conciliation (s81). After a matter is finalised, with or without resolution, the Human Rights Commission can publish information about the matters raised including to recommend actions it thinks should be taken by a respondent to ensure it acts compatibly with the Human Rights Act (s90). There is no further appeal right following the finalisation of a complaint by the Human Rights Commission.
The Human Rights Commission can also refer the matter to other agencies if it is appropriate to do so including the Queensland Ombudsman, the Health Ombudsman, the Crime and Corruption Commission, the Information Commissioner or the NDIS Commissioner (s66). There is no requirement for any consultation to take place before referral but it is intended that arrangements will be made with each organisation about how such referrals will be managed (s74).

Preparing for implementation

To prepare for the operation of the new law, public entities should consider:

• providing education and training in relation to the human rights obligations, particularly front line managers and front line staff, and those with responsibility for complaints management

• developing decision-making support tools to ensure that relevant human rights have been considered and balanced when making decisions, and that this is documented
• ensuring internal complaints management processes are adapted to manage human rights complaints in compliance with the new law
• as human rights obligations can extend to third party contractors (if defined as providing "public" functions or services), ensuring contracting teams are aware when drafting or approving agreements
• reviewing and updating existing policies and procedures to ensure that they acknowledge and reflect the human rights obligations
• reviewing and updating pamphlets and web content to include information about the human rights relevant to your entity

Stay tuned and get in touch

We are preparing updates about the other key human rights and planning is well underway to host a seminar for our public entity stakeholders in the next few months.

We encourage you to contact the authors below with your questions and suggestions in advance.