The Human Rights Act 2019 (Qld) came into effect in January 2020, bringing with it a swathe of protections for human rights in Queensland’s public sector. The Act aims to protect and promote human rights by requiring public entities to act and make decisions in a way that is compatible with human rights. So what have we learned over the last 18 months about how the Act affects workplace investigations?
When does the Act apply?
The Act applies to “public entities” 1, including private entities whose functions are “of a public nature when it is performing the functions for the State or a public entity” .2 It is unlawful under the Act for public entities:
- to act or make a decision in a way that is not compatible with human rights, and
- to fail to give proper consideration to a human right relevant to the decision.3
For workplace investigations, the Human Rights Act 2019 (Qld) will apply to internal investigators, case managers and decision makers. It may also apply to external investigators appointed by a public entity to conduct an investigation. This is likely to be the case in relation to statutory investigations, such as those pursuant to the Hospitals and Health Boards Act 2011 (Qld). Unfortunately, as yet there is no case law to provide further guidance4, so a cautious approach is recommended for external investigators to comply with the Act when conducting investigations for public entities.
Within the plethora of rights protected by the Act, those most likely to directly impact on the conduct of workplace investigations are the right to privacy and the right to reputation.
Right to Privacy
The Act protects the right not to have one’s “privacy, family, home or correspondence unlawfully or arbitrarily interfered with”.5 The Explanatory Note for the Human Rights Bill 2018 provides that an arbitrary interference “extends to those interferences which may be lawful, but are unreasonable, unnecessary and disproportionate”.
In a workplace investigation, information is routinely exchanged with the employer as well as investigation participants (whether orally or in writing) that could potentially impact on a person’s privacy. Consistent with this right to privacy, an investigator should limit information exchanged to that which is reasonably necessary and justifiable for the purpose of a legitimate investigation. This includes information exchanged with participants during the investigation, as well as any requests made by the investigator for access to workplace records or surveillance materials.
Right to Reputation
The Act also protects the right to not have one’s “reputation unlawfully attacked”.6 Some might seek to argue that adverse comments or findings made by an investigator amount to an ‘attack’ on someone’s reputation. The Explanatory Note states that this provision prohibits “attacks on a person’s reputation that are unlawful and intentional, based on untrue allegations”. Between this and the limitations in the Human Rights Act 2019 (Qld)7, adverse comments or findings should not be considered an “unlawful” attack as long as they are made following a proper process of natural justice, and limited to what is necessary in the context of legitimate workplace investigations. For example, considering similar legislation in Victoria, VCAT held that a university professor expressed reasons for withdrawing from supervising a post-graduate student were not an “unlawful” attack on the student’s reputation, even if the student felt them inadequate or harsh.9
Practical tips for investigators
While there has been limited case law since the Act came into force 18 months ago, the rights to privacy and reputation are consistent with well-established legal principles in relation to natural justice and confidentiality. The Act does require public entities to be aware of human rights potentially impacted by an investigation, and where appropriate, that they demonstrate these rights have been considered.10
Some practical tips for investigators to demonstrate consideration of human rights include:
- Assess and document the impact of any proposed act or decision that may limit or interfere with human rights. This assessment could be attached to the investigation report. An impact assessment may include:
- the nature of the human right/s affected
- the purpose of limiting the human right/s
- the relationship between the limitation and the purpose
- whether there were any less restrictive and reasonably available alternatives, and
- whether the action or decision is fair and balanced.
- Document both requests for information, and where appropriate, include your consideration of the impact of the request on a person’s privacy or reputation. (For example, to support a request to access workplace surveillance, mobile phone records or health records.)
- In relation to the investigation report, limit personal information and adverse comments included in the report to those necessary and justifiable, and consider whether the report and any attachments should be de-identified. Reports may be marked as strictly confidential, and distribution limited to a need-to-know basis.
Our team at Q Workplace Solutions regularly conduct investigations and reviews for Queensland public sector clients. For more information about our services, please contact us.
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