Written by Jarad Mahar, Partner, Grace Legal
In most modern democracies, the progression of the human rights movement over the last 75 years has led to increasing claims that one’s human rights have been violated.
In the aftermath of the Second World War, in 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights, outlining an individual’s inalienable rights and freedoms. This declaration formed the cornerstone of the subsequent growth and adoption of binding laws in participating nations, including Australia.
In the recent decision of the Queensland Civil and Administrative Tribunal (Tribunal) in Huang v Body Corporate for the Dorchester CTS 10749 [2024] QCATA 64 (Dorchester), the Tribunal examined the application of the Human Rights Act 2019 (Qld) (HR Act) to community titles schemes.
Background
The appellant, Mr Huang (Owner), was the owner of Lot 32 on the top-level of the scheme, which also had exclusive use over the rooftop area.
In or around 1998, the Owner constructed a toilet and shower facility on the rooftop (Improvement) without Body Corporate approval. On 29 June 2000, a resolution was made at general meeting granting retrospective approval for the Improvement.
Over 20 years later, at a general meeting held on 17 March 2022, the Body Corporate made a resolution rescinding authority for the Improvement (Resolution) in order to undertake waterproofing works to the rooftop area (Works). The Body Corporate formed the view that the Improvement required removal to properly complete the Works.
Commissioner’s Office1
In the proceedings below, the Owner sought to challenge the validity of the Resolution, including on the ground that the decision was unreasonable. On this ground, the main contention of the Owner was that the Improvement did not require removal for the Body Corporate to complete the Works (on the basis there was an alternative method of carrying out the necessary repairs without removing the Improvement).
The Adjudicator dismissed the application, determining that the Resolution was not unreasonable. The Adjudicator relied on the fact that the Body Corporate’s expert recommended that it was preferable for the Improvement to be removed (and not reinstated) in order to properly complete the Works and minimise the risk of water ingress into the building in future.
The QCAT appeal—an arbitrary deprivation of the Owner’s property rights?
The Owner appealed the Adjudicator’s decision to the Tribunal raising several grounds of appeal, including that the Adjudicator failed to construe the Body Corporate’s duty to act reasonably in a way compatible with his human rights under the HR Act.
The Owner sought to argue that both the Resolution, and the Adjudicator’s decision, contravened the HR Act – by arbitrarily depriving him of his property. The appellant contended that the Adjudicator was obliged to consider his human rights in making a decision.
In reaching a decision dismissing the appeal, the Tribunal found:
The Owner’s exclusive use rights, including the Improvements, were proprietary rights subject to the HR Act.
Critically, the object of the HR Act is to regulate and temper decision-making in the public sector, and the nature of an adjudication dispute was the resolution of a private dispute.
Accordingly, there was no obligation on the Body Corporate to consider the Owner’s human rights in making the Resolution, as the Body Corporate is a private entity (not subject to the HR Act).
Similarly, although the Adjudicator was acting as a public entity (ordinarily subject to the HR Act), he was not bound to apply the HR Act in reaching a decision (as he was not performing functions of a public nature and, instead, was acting in a judicial-type capacity to resolve a private dispute).
Another interesting outcome of the appeal was the Tribunal’s dismissal of the Owner’s claim that the Adjudicator failed to give sufficient weight to a report of the Owner’s expert that suggested the Works could be adequately undertaken without requiring removal of the Improvement.
On this ground the Tribunal held that, although the Owner’s expert had opined that the Work could proceed without removing the Improvement, the opinion was highly qualified. Even the Owner’s own expert acknowledged that completing the Work with the Improvement in place would be more tedious and costly, and the effectiveness of the results more uncertain. Accordingly, given the serious nature of water penetration into the building, it was not unreasonable for the Body Corporate to prefer the more rigorous approach to the repairs (involving removal of the Improvement).
Conclusion
The Tribunal has determined that the HR Act does not apply in the private setting, including in relation to both body corporate decision-making, as well as public decision-makers resolving private disputes (such as Adjudicators).
The decision in Dorchester should also serve as a reminder to owners who undertake improvements to areas of common property (including exclusive use areas) that, regardless of whether they have approval of the body corporate, it may not be unreasonable for the body corporate to subsequently rescind the approval (and compel removal of the improvements) in circumstances where it is necessary for the body corporate to carry out its statutory functions (including its duty to maintain the common property in good order and repair).
It is important to note that the decision in Dorchester (about the (non-) application of the HR Act to private community titles disputes) is different from the applicability of other legislative instruments concerning anti-discrimination.
Other state and federal laws (such as the Anti-Discrimination Act 1991 (Qld) and Disability Discrimination Act 1992 (Cth)) do operate in the context of community titles schemes, including in relation to accessibility of common property and body corporate decision-making (as evidenced by the Tribunal’s decision in Knox v Body Corporate for 19th Avenue CTS 6625 [2020] QCAT 497).
That said, the operation of anti-discrimination legislation, and determination of whether there has been a contravention of same (as well as any penalty), carries a much narrower analysis and application than broad allegations and complaints from owners and occupiers that they have been discriminated against.
Similar to allegations of defamation, it is easy for someone to claim their ‘human rights’ have been infringed, or that they have been subject to discrimination. However, it is a very different thing to successfully prosecute such a claim.
Whilst those operating within community titles schemes should be aware of obligations under anti-discrimination laws (e.g. disability discrimination legislation), based on the decision in Dorchester, bodies corporate, committees, owners and occupiers can move forward with relative confidence that the Human Rights Act 2019 (Qld) is not applicable to private disputes in community titles schemes.
1. The Dorchester [2023] QBCCMCmr 220.
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