Substantive Equality and the Possibilities of the Queensland Human Rights Act 2019

Abstract

The passage of the Human Rights Act 2019 (Qld) (‘HRA 2019’) was a significant achievement, particularly in a state often known for its parochial conservatism and disinterest in, if not outright rejection of, human rights. The HRA 2019 is substantially based upon the human rights Acts in place in Victoria and the Australian Capital Territory. However, there are some small, but potentially important differences between the HRA 2019 and the corresponding state and territory equivalents. In this article, I focus on one of these differences: the definition of discrimination contained in the HRA 2019. Unlike the Charter of Human Rights and Responsibilities Act 2006 (Vic) the definition of discrimination in the HRA 2019 is not tied to the definition or grounds of discrimination in the state discrimination legislation. This small but important distinction could feasibly allow courts to define discrimination and the broader notion of equality in a more substantive manner, covering a wider variety of actions and conduct, and apply that wider definition to a broader range of attributes (commonly understood as ‘grounds’). The purpose of this article is to consider the possibilities and potential challenges confronting Queensland courts in broadening the definition of discrimination in the context of HRA 2019. I argue that, though a substantive interpretation of discrimination and equality is challenging and requires a degree of ‘creativity’ on the part of judges, it is a challenge worth undertaking.