The ACT Human Rights Act 2004 was the first bill of rights in Australia. It incorporates internationally recognised human rights. Respect for human rights is an important part of a free and democratic society which values fairness and inclusiveness.
The HRA is a ‘non-entrenched’ bill of rights - it is an ordinary law that can be amended by the ACT Legislative Assembly like any other piece of legislation. It does not override or trump other laws, but must be taken into account when interpreting and applying Territory legislation.
The HRA establishes a ‘dialogue’ model of human rights protection where the Executive government, the Legislative Assembly and the courts have separate roles and responsibilities for protecting and promoting the human rights of all Canberrans.
The HRA imposes a number of obligations on government and public authorities to consider human rights as part of the process for developing laws and policies. Human rights can only be subject to reasonable and demonstrably justifiable limitations set by laws.
This means that the Government must clearly explain to the Assembly and the public (through the explanatory statement) how a proposed law serves a legitimate purpose, that it is appropriate and adapted to meeting that purpose and that the proposed law is proportionate.
Proposed laws have to be assessed for consistency with human rights, both by the Attorney-General and the Standing committee on Justice and Safety Committee (Legislative Scrutiny Role).
The role of the Legislative Assembly as the representatives of the Territory community is upheld, giving members the ultimate say in what laws can be made, even if those laws are inconsistent with human rights.
Courts are required to interpret laws as far as possible to be compatible with human rights. Where they decide that an Act (or a provision of an Act) cannot be given an interpretation that is compatible with the HRA, they cannot invalidate the law. Instead, the Courts can issue a declaration of incompatibility, which the Government must present and respond to in the Legislative Assembly. It will then be up to the Legislative Assembly to consider any proposed changes, thereby promoting a dialogue between the courts, the government and the public.
In addition to influencing the law-making process the HRA provides that all ACT public authorities (which includes all ACT public servants and staff performing functions of a public nature) must act and make decisions consistently with human rights. This involves understanding who is impacted by a decision, whether and how their rights will be limited and the consequences, and balancing those considerations with other rights or community interests or obligations.
Where a person believes that their rights have not been properly respected, they can begin a proceeding in the Supreme Court (as a direct right of action) or rely on their rights in other proceedings (such as a residential tenancy eviction proceedings) to seek a remedy from the Court or Tribunal for any breach.
In these ways the HRA requires that impacts on the human rights of individuals within the community are addressed and mitigated as a matter of course when drafting legislation, and implementing policies and practices.
Understanding human rights is not only a requirement for all ACT public servants. It is an essential skill set for undertaking balanced, evidence based, and fair public administration.
Laws which support the aims of the Human Rights Act and give effect to the rights, include:
Please see the Human Rights Commission Website for more information.
The Human Rights Act 2004 (ACT) (Human Rights Act) provides statutory protection of human rights in the ACT. The ACT was the first jurisdiction in Australia to enact a Human Rights Act.
The Human Rights Act protects several civil and political rights as well as some economic, social and cultural rights. These rights are primarily drawn from the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Other laws in the ACT also protect human rights, including the Discrimination Act 1991. Human rights are also protected under international law.
The human rights protected in the Human Rights Act are:
Further information about each of these rights can be found in the Human Rights Fact Sheets.
When a bill is presented to the Legislative Assembly, it must be accompanied by a written statement (a compatibility statement) about the bill, which must state whether, in the Attorney-General’s opinion, the bill is consistent with human rights.
Where a bill engages and limit human rights, the explanatory statement accompanying the bill identifies any human rights that are engaged and justifies any reasonable limits on human rights.
A copy of the explanatory statements accompanying ACT legislation can be found at www.legislation.act.gov.au
The Standing Committee on Justice and Community Safety (Legislative Scrutiny Role) is a Committee of the Legislative Assembly for the ACT that reports to the Assembly about human rights issues raised by bills presented to the Assembly.
In the ACT, all public authorities must act in a way that is compatible with human rights and must give proper consideration to human rights when making decisions.
People who claim that a public authority has acted in breach of their human rights under the Human Rights Act may bring proceedings in the Supreme Court.
ACT Courts and Tribunal also have a role in the promotion and protection of human rights.
The Courts are required to interpret all law consistently with human rights, and to issue a declaration of incompatibility where they find that a law is incompatible with the Human Rights Act.
Courts can also draw on international jurisprudence when interpreting human rights.
We acknowledge the Ngunnawal people as traditional custodians of the ACT and recognise any other people or families with connection to the lands of the ACT and region. We acknowledge and respect their continuing culture and the contribution they make to the life of this city and this region.