High Court Highlights the Growing Importance of Queensland's Human Rights Act
The Human Rights Act 2019 (Qld) has various functions aimed at protecting and promoting human rights, building a culture in the Queensland public sector that respects and promotes human rights and to generally promote discussion and understand of human rights.
Most significantly, the Human Rights Act:
Identifies who has human rights;
Defines human rights for the purpose of the Human Rights Act;
Requires that “all statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights”;
Requires all public entities to:
(a) act or make a decision in a way that is not compatible with human rights; and
(b) give proper consideration to a human right relevant to the decision.
Sets out requirements for making decisions that affect a human right.
Smith v Chief Executive, Queensland Corrective Services [2026] HCA 37 is an important decision about fertility preservation, statutory interpretation and human rights considerations. The High Court unanimously held that a Queensland prisoner was not prohibited from applying to undergo egg extraction and freezing. However, the broader significance lies in its engagement with the Human Rights Act.
Although the Court did not definitively resolve all questions about the operation of the Human Rights Act, the decision provides important guidance on how human rights considerations may influence the interpretation of legislation and administrative decision-making in Queensland.
Human Rights Considerations under the Human Rights Act
All individual in Queensland have human rights. Only people have human rights. They do not extend to corporations or other entities.
It is important to note that human rights are specific in the protection they offer. Not all decisions that impact a person will affect a human right.
The Human Rights Act expressly recognises that a human right can be limited. However, it requires that limitation to be a reasonable limitation that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Section 48 of the Human Rights Act provides the overarching requirement that:
all statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
if a statutory provision cannot be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
This applies to all legislation unless the specific provision has an “override declaration” in force where parliament has declared the provision has effect despite being incompatible with 1 or more human rights.
The Act also imposes an express requirement on a public entity to:
act or make a decision in a way that is compatible with human rights; and
in making a decision, must give proper consideration to a human right relevant to the decision.
A public entity includes government departments, local governments, elected officials and employees.
An act, decision or statutory provision is “compatible with human rights” if the act, decision or provision:
does not limit a human right; or
limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.
Section 13 sets out the test for determining whether a limit on a human right is reasonable and justifiable.
The dispute in Smith v Chief Executive, Queensland Corrective Services
Rachel Smith, a prisoner in Queensland, sought approval to undergo egg extraction and freezing at her own expense. The application was driven by concerns about declining fertility. By the time she became eligible for parole she would be 39 years old, and by the expiry of her sentence she would be 41.
Importantly, Smith was not seeking to conceive a child while incarcerated. Rather, she sought to preserve her fertility and maintain the possibility of having children after her release.
Queensland Corrective Services refused the application on the basis that the proposed procedure constituted "assisted reproductive technology". Section 22(2) of the Corrective Services Act 2006 (Qld) prohibits prisoners from applying to undertake, or participating in, assisted reproductive technology.
The refusal was upheld by both the Queensland Supreme Court and the Court of Appeal before the matter reached the High Court.
In the High Court, two grounds of appeal were relied upon:
the Court of Appeal erred in holding that s 22(2) of the Corrective Services Act operates to prohibit women prisoners from freezing their eggs during their custodial term.
the Court of Appeal erred in holding that s 48(1) of the Human Rights Act has "no role to play in the interpretation of a statutory provision unless, when the provision is construed without reference to human rights, its language admits of at least two constructional choices".
A unanimous outcome
The High Court unanimously allowed Smith's appeal. The Court held that egg extraction and freezing do not constitute participation in assisted reproductive technology for the purposes of s 22(2).
Central to the Court's reasoning was the distinction between technology that assists conception or reproduction and technology that merely preserves a person's future reproductive capacity.
The High Court found that the egg extraction and freezing fell into the second category. They preserve fertility but do not themselves result in conception or reproduction. As a result, the statutory prohibition did not apply.
The High Court quashed the refusal decision and remitted the matter to Queensland Corrective Services for reconsideration according to law.
Importantly, the Court did not order that the treatment be approved. The decision simply established that the application could not be rejected on the basis that the fertility preservation procedure was prohibited under s 22.
Why the Human Rights Act matters
Although the appeal succeeded on conventional principles of statutory interpretation, the case is particularly significant because it raised questions about the operation of Queensland's Human Rights Act 2019.
The case therefore presented a broader question: when legislation is capable of more than one interpretation, to what extent does the Human Rights Act require courts to adopt an interpretation that is compatible with human rights?
The High Court's answer was nuanced.
The Court did not finally determine the Human Rights Act issue
A careful reading of the judgments is essential.
Much commentary is likely to focus on the discussion of the Human Rights Act, but the Court did not unanimously resolve the separate ground of appeal concerning s.48 of the Act.
The Judgment
Gordon ACJ and Beech-Jones J concluded that the appeal could be resolved through ordinary statutory interpretation. Their Honours held that egg freezing simply fell outside the prohibition contained in s 22.
Because that conclusion disposed of the appeal, they expressly stated that it was unnecessary to determine the separate Human Rights Act ground.
Even so, their reasoning recognised the broader context of the Corrective Services Act, including its concern for prisoners' dignity, welfare and access to appropriate medical treatment.
Justices Gleeson and Jagot resolved the appeal on the statutory interpretation point and also did not consider the s.48 issue in detail.
Edelman J's analysis
Justice Edelman undertook a more extensive examination of the Human Rights Act and, in particular, the operation of s 48. His Honour's reasons are likely to be influential in future human rights cases.
Edelman J considered that the broader interpretation adopted by the lower courts imposed a significant limitation on relevant human rights. In his view, that interpretation could not be justified consistently with the statutory framework and the human rights protected by the Act.
His Honour emphasised that s.48 is not merely a reminder that courts should consider human rights when interpreting legislation. Rather, where the statutory language permits, a human-rights-compatible interpretation should be preferred.
The judgment contains an important discussion of techniques available to courts when interpreting legislation consistently with human rights, including conforming interpretation, severance and partial disapplication.
However, because the joint judgment did not need to decide those issues, Edelman J's analysis should not be treated as a unanimous ruling on the precise operation of s.48.
Human rights do not stop at the prison gate
One of the most important themes emerging from the case is that a circumstance such as imprisonment does not extinguish all aspects of personal autonomy.
The High Court recognised a critical distinction between facilitating reproduction while a person is incarcerated and preserving the possibility of reproduction after a person has served their sentence.
That distinction reflects a broader principle that people in custody retain their fundamental rights except to the extent those rights are necessarily limited by lawful imprisonment.
The decision serves as a reminder that all people, including prisoners, remain rights-holders under Queensland's Human Rights Act and that restrictions on those rights require careful justification.
What this means for public authorities
For public authorities in Queensland, the decision highlights the importance of approaching decision-making through both a statutory and human rights lens.
A broad or literal interpretation of legislation may not always be correct, particularly where it unnecessarily limits recognised human rights.
Decision-makers should carefully consider:
the text of the legislation;
the purpose of the legislation;
the practical impact of a decision on affected individuals; and
whether a less rights-restrictive interpretation is reasonably available.
Key takeaway
The High Court's decision delivers a clear practical outcome: fertility preservation through egg extraction and freezing is not prohibited by s 22(2) of the Corrective Services Act 2006.
The broader significance of the case, however, lies in what it says about human rights.
While the Court stopped short of definitively resolving every question about the operation of s 48 of the Human Rights Act, the decision reinforces the growing role of human rights in statutory interpretation and administrative decision-making.
For lawyers, public authorities and decision-makers alike, Smith is a reminder that human rights are not merely an afterthought. They are increasingly becoming part of the interpretive framework through which legislation is understood and applied in Queensland.
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