The ACT Human Rights Act

Overview
Key aspects of the Human Rights Act
How the Human Rights Act works in practice
Amendment & review of the Human Rights Act

Overview

The Human Rights Act 2004 (ACT) is an ordinary Act of the Australian Capital Territory Legislative Assembly. The Human Rights Act is based on the‘dialogical’ or ‘weak-form’ model of human rights protection.

The Human Rights Act was the first Charter of Human Rights enacted in Australia. It came into force on 1 July 2004.

This historic move was made in response to recommendations made by the ACT Bill of Rights Consultative Committee, which consisted of Professor Hilary Charlesworth (Chair), Professor Larissa Behrendt, Ms Penelope Layland and Ms Elizabeth Kelly. The recommendations were made after a detailed community consultation process about how best to protect the human rights of ACT citizens. The Final Report of the consultation committee indicated that a majority of ACT citizens were in favour of an ACT Charter of Human Rights.

Key aspects of the Human Rights Act

It is in keeping with Australia’s international obligations.

The majority of human rights enshrined in Part 3 of the Charter are based on the International Covenant on Civil and Political Rights, a treaty which Australia ratified in 1980.

The relevant rights are:

It does not limit or restrict other rights or freedoms.
The Human Rights Act expressly sets out core human rights, but this does not mean that it excludes, limits or downgrades any rights or freedoms not included in the Act. The Act expressly states that the rights recognised by Part 3 are not exhaustive of an individual’s human rights: s 7.

Reasonable limitations can be placed on a human right
Reasonable limitations may be placed on a human right where this limitation ‘can be demonstrably justified in a free and democratic society’: s 28.

New Bills are scrutinised to determine whether they are compatible with human rights
The Attorney-General must prepare a written compatibility statement about each government Bill for presentation to the Legislative Assembly. The Attorney-General is to state whether the Bill is consistent with human rights and, if it is not consistent, how it is not consistent: s 37. A standing committee must report to the Legislative Assembly about human rights issues raised by Bills presented to the Assembly: s 38.

Courts and tribunals must interpret legislation consistently with human rights
Acts and statutory instruments must be interpreted in a way that is compatible with the Human Rights Act, so far as is possible to do so with the instrument’s purpose: s 30. Courts and tribunals may use international human rights jurisprudence to assist in interpretation: s 31.

The ACT Supreme Court cannot ‘strike down’ a law but may issue a declaration of incompatibility
If the ACT Supreme Court finds that a statutory provision is not consistent with the rights contained in the Human Rights Act, it cannot ‘strike down’ or invalidate the provision in question, nor can the Court rule that any government acts made under the provision are unlawful. The Supreme Court may only make a declaration of incompatibility, and notify the Attorney-General of this. The Attorney-General must notify the Legislative Assembly and present a written response: ss. 32, 33. It will then be up to the elected members of the Legislative Assembly to decide what action (if any) to take.

However, this assumes that the Supreme Court is not exercising federal jurisdiction. This is because the High Court has recently held that courts exercising federal jurisdiction may not issue a declaration of inconsistent interpretation. This would be contrary to the limits on such courts under Chapter III of the Australian Constitution: see Momcilovic.

The Human Rights Commission can review the effect of laws
The Human Rights Commission has functions under the Human Rights Act of reviewing the effect of ACT laws, including the common law, on human rights and of reporting the results of such reviews to the Attorney-General: : s. 41.

How the Human Rights Act works in practice

For analysis of the impact of the Human Rights Act, including case analysis, conference papers and a vast compendium of media reports and opinions, visit the ACT Human Rights Act Research Project.

Amendments and review

The Human Rights Act was reviewed after twelve months and five years of operation.

The Act was amended by the Human Rights Amendment Act 2008, which was passed by the Legislative Assembly on 4 March 2008. The key changes made by the Amendment Act were to:

s 30, in order to clarify the interaction between the Human Rights Act and the purposive approach to statutory interpretation;
s 34, which requires the Supreme Court to notify the Attorney-General and Human Rights Commissioner when it is hearing a case involving the application of the Human Rights Act; and
s 28, which clarifies the limits that can be placed on human rights by setting out a list of factors that must be taken into account when determining whether a limitation is proportionate.

These amendments came into force on 18 March 2008.

Additionally, the Amendment Act also created a new Part 5A, which contains:

a direct duty on public authorities to comply with the Human Rights Act; and
an independent cause of action and right to remedy (but not damages) if a public authority has contravened a human right.

These two provisions came into force on 1 January 2009.

Debate over the potential further amendments of the Human Rights Act remains ongoing.

In 2010, the ACT Economic, Social and Cultural Rights Research Project (conducted by researchers at the Australian National University and the University of New South Wales) concluded that the inclusion of economic, social and cultural rights guarantees in the Human Rights Act is ‘desirable and feasible’, and that the Act should be amended to include most of the rights contained in the ICESCR. The project report was tabled in the ACT Legislative Assembly by the Attorney-General on 9 December 2010. The ACT Government is currently conducting a community consultation about the possible inclusion of economic, social and cultural rights in the ACT Human Rights Act. For further information, see the Justice and Community Safety Directorate.