Acts, Decisions And Conduct Obligations: Implications From Recent Australian Human Rights Acts Cases

Abstract A ‘dialogue model’ of a bill of human rights has been enacted under Australian Human Rights Acts in the Australian Capital Territory, Victoria and Queensland. This model includes obligations imposed on public authorities or public entities to act compatibly with human rights (substantive obligation) and to give proper consideration to relevant human rights (procedural obligation). Reviews of compliance with these ‘conduct obligations’ have proven the most successful avenue in human rights litigation to date. This article examines the conduct obligations through the lens of four recent significant judicial review cases – Thompson v Minogue (2021) 294 A Crim R 216, Davidson v Director-General, Justice and Community Safety Directorate (2022) 18 ACTLR 1, Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250, and Johnston v Carroll; Witthahn v Wakefield; Sutton v Carroll [2024] QSC 2. The article critiques two issues: (1) the substantive obligation and judicial rejection of the concept of weight and latitude being granted to a decision-maker; and (2) the procedural obligation and judicial rejection of proportionality factors as mandatory relevant considerations. It concludes that, despite these contestable issues, the jurisprudence has reached a certain level of maturity and relative consistency.