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The ACT Human Rights Act: Australia’s First Charter of Human Rights



 

On 2 March 2004, the ACT Legislative Assembly passed the Human Rights Act 2004. The Act came into force on 1 July 2004. For an analysis of the new Human Rights Act see George Williams, The Case for an Australian Bill of Rights: Freedom in the War on Terror (UNSW Press, 2004). See also the ANU resources page on this law.

For comments on and analysis of the new legislation see:

Generally, see ACT Human Rights Act Research Project established to monitor the ACT Human Rights Act 2004 over its first five years. Contains a wealth of articles and other resources on the impact of the Human Rights Act, including conference papers, and a search facility of cases decided under the Act

Papers available from forum co-organised by Centre for International and Public Law and the Gilbert + Tobin Centre of Public Law on Australia’s First Bill of Rights
George Williams, ‘ACT bill of rights a good starting point’, Australian Financial Review (2 July 2004)
Michael Walton, ‘What’s been left out of Australia’s First Bill of Rights?’, Alternative Law Journal (2004)

Workings of the Act

Carolyn Evans, ‘Responsibility for rights: the ACT Human Rights Act’. Federal Law Review, 2004.

Department of Justice and Community Safety, ’12 month review of the ACT Human Rights Act’

Evaluations

Carolyn Evans, ‘Human Rights Act and Administrative Law Talk’. Paper presented at the Conference Assessing the First Year of the ACT Human Rights Act, ANU, 29 June 2005.

Gabrielle McKinnon, ‘The ACT Human Rights Act – the second year’. Paper presented at the Australian Bills of Rights Conference, 21 st June 2006.

Gabrielle McKinnon, ‘Strengthening the Human Rights Act 2004’. Paper presented at the Human Rights Office Community Forum, 1 July 2005.

Richard Refshauge, ‘The Human Rights Act 2004 and the Criminal Law’. Paper presented at the Conference Assessing the First Year of the ACT Human Rights Act, ANU, 29 June 2005.

P BLuck, ‘The year of living (relatively) uneventfully’.

Rebecca Minty, ‘Saved by the Bill? The effect of the ACT Human Rights Act 2004 on legislative provisions that reverse the onus of proof’. Australian National University, 2005.

Debeljak, J. 'The Human Rights Act 2004 (ACT): A Significant, Yet Incomplete, Step Toward the Domestic Protection and Promotion of Human Rights' (2004) 15 Public Law Review 169-176.

Impact on Government

Elizabeth Kelly, ‘Government in the ACT: A Human Rights Act dialogue’. Paper presented at the Conference Assessing the First Year of the ACT Human Rights Act, ANU, 29 June 2005

Renee Leon, ‘Australian Bill of Rights – ACT and beyond’

The Human Rights Act:

Includes the civil and political rights contained in the International Covenant on Civil and Political Rights, which Australia has signed;
Requires courts and tribunals to interpret laws to be compatible with the Human Rights Act “as far as possible” (s 30);
Empowers the ACT Supreme Court to issue a non-binding “declaration of incompatibility” when a law is not consistent with the rights contained in the Human Rights Act (s 32);
Requires pre-enactment scrutiny of all legislation, including a statement from the Attorney-General about whether legislation is compatible with the Human Rights Act (Pt 5); and
Establishes a Human Rights Commissioner (part of the Human Rights Office) to review existing legislation and conduct education programs relating to human rights (Pt 6).

This historic move was made in response to recommendations made by the ACT Bill of Rights Consultative Committee.

The Chief Justice of the ACT Supreme Court delivered a speech to the National Press Club in Canberra on 3 March 2004, in which he explained the significance of the new Bill of Rights. The speech was entitled: “Australia’s First Bill of Rights – Testing Judicial Independence and the Human Rights Imperative”.

There had been speculation in the media that the Prime Minister would attempt to overturn the ACT Bill of Rights. In a radio interview Australian Prime Minister, John Howard, expressed the opinion that “a Bill of Rights is totally undesirable. I think it can end up restricting rights rather than enhancing them”.

Some of the rights contained in the Act are:
Recognition and equality before the law
Right to life
Protection from torture and cruel, inhuman or degrading
Treatment
Protection of the family and children
Privacy and reputation
Freedom of movement
Freedom of thought, conscience, religion and belief
Peaceful assembly and freedom of association
Freedom of expression
Right to take part in public life (voting, etc)
Right to liberty and security of person
Human treatment when deprived of liberty
Children in the criminal process
Right to a fair trial
Rights in criminal proceedings (presumption of innocence, right to silence, etc)
Compensation for wrongful conviction
Right not to be tried or punished more than once (double jeopardy)
No retrospective criminal laws
Freedom from forced work
Rights of minorities

For earlier comments on the Bill see:
Roderick Campbell, ‘Top Judge applauds ACT Bill of Rights’, Canberra Times (4 March 2004)
Hansard debate in the Legislative Assembly (2 March 2004)
George Williams, ‘Finally, Australia’s first Bill of Rights’ Australian Financial Review (12 March 2004).
George Williams ‘ACT well on its way to a Bill of Rights’, (first published in the Canberra Times 25 October 2003)
Editorial, ‘Bill of Rights acts as shield’, Canberra Times (27 October 2003)
Leighton McDonald and Adrienne Stone, 'Planned rights act won't need 'twin' code of responsibilities' Canberra Times (19 November 2003)
Papers delivered at a seminar organised by the Centre for International and Public Law on The ACT Human Rights Bill
 









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