The ACT Human Rights Act

Contributed by Renuka Thilagaratnam and Dr Helen Watchirs, ACT Human Rights Commission and current to 5 December 2021.

Introduction

The Human Rights Act 2004 (ACT) (HR Act) commenced on 1 July 2004. It provides a framework for the protection of human rights in the ACT by creating a ‘dialogue’ about human rights between the three arms of government, and regulating the conduct of public authorities. The ACT was the first Australian jurisdiction to introduce legislation explicitly protecting human rights (Victoria introduced similar human rights legislation two years later: the Charter of Human Rights and Responsibilities Act 2006 (Vic)).

Protected rights

The HR Act protects a range of rights and freedoms that are drawn from the International Covenant on Civil and Political Rights 1966 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR):

• right to recognition and equality before the law (s 8);
• right to life (s 9);
• right to protection from torture and cruel, inhuman or degrading treatment (s 10);
• right to protection of the family and children (s 11);
• right to privacy and reputation (s 12);
• right to freedom of movement (s 13);
• right to freedom of thought, conscience, religion and belief (s 14);
• right to freedom of association and peaceful assembly (s 15).
• right to freedom of expression (s 16);
• right to take part in public life (s 17);
• right to liberty and security of person (s 18);
• right to humane treatment when deprived of liberty (s 19).
• rights of children in the criminal process (s 20);
• right to a fair trial (s 21);
• rights in criminal proceedings (s 22);
• right to compensation for wrongful conviction (s 23)
• right not to be tried or punished more than once (s 24); and
• right to protection from retrospective criminal laws (s 25).
• right to freedom from forced work (s 26);
• rights of minorities and Aboriginal and Torres Strait Islander peoples (s 27);
• right to education (s 27A); and
• right to work and rights in work (s 27B).

Reasonable limitations

While some rights such as the prohibition against torture are absolute and may never be lawfully limited, most rights, however, may be subject to reasonable limits. International human rights law uses a ‘proportionality test’ to work out what are legally acceptable limitations on human rights. Section 28 brings the ‘proportionality test’ into ACT law and states that:

‘Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.’

A decision about whether a human right may be limited needs to take into account all relevant factors, including:

• the nature of the right;
• the importance of the purpose of the limitation;
• the nature and extent of the limitation;
• the relationship between the limitation and its purpose; and
• any less restrictive means reasonably available to achieve the purpose sought by the limitation.

Limitations on rights must therefore have a clear legal basis and must be reasonable, necessary and proportionate in pursuit of a legitimate objective. In general, this involves asking the following questions:

• Whether the limitation is prescribed by law, that is, whether it is clear, accessible and precise so that people know the legal consequences of the limitation or the circumstances under which authorities may restrict the right/freedom?
• Whether the limitation of the right pursues an objective of sufficient importance to warrant limiting the right?
• Whether the limitation is rationally connected to the objective?
• Whether the limitation minimally impairs the right, taking into account alternative means of achieving the same objective, and whether it includes adequate safeguards to ensure that its effects are not disproportionately severe on particular groups/individuals?

Pre-enactment scrutiny of laws

Statements of compatibility

The HR Act (s 37) requires the Attorney-General to prepare a written statement about each government bill presented in the ACT Legislative Assembly indicating whether in his or her opinion the bill is consistent with human rights. If a bill is inconsistent with human rights, the Attorney-General’s statement must explain how it is inconsistent.

Scrutiny reports

A standing committee of the Legislative Assembly, the Committee on Justice and Community Safety (Legislative Scrutiny Role), considers and reports to the Assembly on the human rights matters raised by any bill (both government and private members bills) introduced into the Assembly (s 38).

Failure to comply with the requirements in s 37 or s 38 of the HR Act does not affect the validity, operation or enforcement of an Act that is passed (s 39). The HR Act therefore preserves parliamentary sovereignty and the ACT Legislative Assembly retains the discretion to pass laws that are not compatible with the HR Act.

Interpretation of laws

The HR Act (s 30) requires all ACT statutes and statutory instruments (such as a regulation) be interpreted in a way that is compatible with human rights, so far as it is possible to do so consistently with their purpose, in a way that is consistent with the human rights protected in the Act. The effect of this rule is that courts and tribunals are required to find a rights-compatible interpretation, consistent with legislative purpose, even where there is no ambiguity in a provision’s wording. International law and relevant judgments of domestic, foreign and international courts and tribunals may be considered in interpreting human rights (s 31).

Declarations of incompatibility

The ACT Supreme Court may issue a declaration of incompatibility if it finds it impossible to interpret a Territory law consistently with human rights (s 32). The declaration by the Supreme Court does not alter the rights of the parties or invalidate the law, nor does it prevent the continued operation or enforcement of the law. The declaration of incompatibility is a formal way of expressing the Supreme Court’s finding on the question of compatibility.

Once a declaration has been issued the registrar of the Supreme Court must provide a copy to the Attorney-General. The Attorney-General is required to table the declaration in the ACT Legislative Assembly within 6 sitting days of receiving it and table a written response no later than 6 months after that.

As of March 2017, there has only been one declaration of incompatibility, In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147 made by the ACT Supreme Court. In Islam, the ACT Supreme Court declared that s 9C of the Bail Act 1992 (ACT)), which requires bail applicants who are charged with murder, certain drug offences and ancillary offences to show ‘exceptional circumstances’ before having a normal assessment for bail undertaken, is incompatible with s 18(5) of the HR Act (the right not be detained in custody as a general rule while awaiting trial). The law in question, however, has not yet been amended to rectify the incompatibility identified by the Supreme Court.

Right to intervene – Attorney-General and Human Rights Commissioner

The Attorney-General has a right to intervene in any proceeding before a court or tribunal in which a question arises in relation to the application of the HR Act (s 34). The Human Rights Commissioner may also intervene, with the leave of the court or tribunal, in any legal proceedings, which relates to the application of the HR Act (s 36).

The Attorney-General and the Human Rights Commissioner must be notified when a question arises in a proceeding in the ACT Supreme Court that involves the application of the HR Act, or when the Supreme Court is considering making a declaration of incompatibility (s 34).

The Human Rights Commissioner has various other functions in relation to the HR Act, including:

• Providing community education and information about human rights;
• Reviewing the effect of ACT laws on human rights; and
• Advising the Minister of Justice on the operation of the HR Act.

Obligations of public authorities

A public authority’s duty to comply with human rights is contained in the HR Act (s 40B). The HR Act imposes an obligation on ‘public authorities’ (defined in s 40) to act in a way that is compatible with human rights and to give proper consideration to human rights in their decision-making.

This means that public authorities (including private bodies performing public functions on behalf of government) must carry out their functions in a manner that is compatible with the human rights in the HR Act. However, the duty to comply with human rights will not apply if a public authority is expressly required by law to act in a particular way, or if the law itself cannot be interpreted consistently with human rights (s 40B(2)).

Right of action

A person who alleges that a public authority has breached a human right can apply to the ACT Supreme Court for relief (s 40C). A proceeding against a public authority for a breach of a human right must be brought within one year of the date on which the alleged unlawful conduct took place. However, the Supreme Court can extend that period if it considers it is fair to do so in the circumstances.

Only an individual who alleges that he or she is (or would be) the ‘victim’ of the alleged human rights breach by the public authority can bring proceedings. Relatives of a victim may also have standing in certain circumstances, for example, where a complaint is made about the victim’s death, or where the victim is a child.

A person may also rely on human rights in other legal proceedings in ACT courts and tribunals. For example, an applicant may rely on human rights grounds in an administrative action against a public authority under the Administrative Decisions (Judicial Review) Act 1989 (ACT). Human rights arguments can also be relied upon, for example, as arguments as part of a defence to criminal prosecution, a stay of proceedings or a hearing regarding exclusion of evidence.

Remedies

Section 40C(4) of the HR Act provides that the Supreme Court may grant ‘the relief it considers appropriate’ except for damages, where a public authority has been found in breach of its obligations under the HR Act.

Remedies ordered by the Court might include an injunction to stop or prevent conduct from occurring, or a declaration that the decision was unlawful, requiring the original decision to be reconsidered in a human rights consistent manner. Any right to damages under other legislation or the common law for the same conduct remains undisturbed. So, while there is no separate right to damages for a breach of human rights, human rights arguments may be raised to strengthen a pre-existing claim for damages, such as in negligence.