Frequently Asked Questions

What is the ACT Human Rights Act?

The ACT Human Rights Act is an ordinary Act of the ACT Legislative Assembly, and applies to the ACT government and laws. It has no direct effect on Federal legislation. The Human Rights Act is intended to create a dialogue about the protection of human rights between the Courts, the Legislative Assembly and the ACT government by building consideration of human rights into the development of policy and legislation. The Act cannot be used to invalidate legislation but it can be used to shape the interpretation of ACT laws.

When did it come into force?

The ACT Human Rights Act was enacted on 10 March 2004. The substantive provisions of the Act came into force on 1 July 2004.

What was the effect of the Human Rights Amendment Act?

The Amendment Act was passed by te Legislative Assembly on 4 March 2008. The Amendment Act:

• introduces a new interpretive provision, intended to clarify the interaction between the HRA and the purposive approach to statutory interpretation;
• clarifies the limits that can be placed on human rights by setting out a list of factors that must be taken into account when considering whether a limitation is proportional;
• requires the Supreme Court to notify the Attorney-General and Human Rights Commissioner when it is hearing a case involving the application of the HRA;
• creates a direct duty on public authorities to comply with the HRA and an independent cause of action if a public authority has contravened a human right; and
• creates an 'opt in' provision for other entities to be bound by the obligation to act in compliance with human rights.

Who has human rights?

Everyone in the ACT has human rights under the ACT Human Rights Act, whether or not they are Australian citizens or residents of the ACT. Corporations do not have human rights.

Which human rights are protected?

The Act protects the following rights drawn from the International Covenant on Civil and Political Rights:

• to recognition and equality before the law
• to life from the time of birth
• to protection from torture and cruel, inhuman or degrading treatment
• to protection of the family and children
• to privacy and reputation
• to freedom of movement
• to freedom of thought, conscience, religion and belief
• to peaceful assembly and freedom of association
• to freedom of expression
• to take part in public life
• to liberty and security of person
• to humane treatment when deprived of liberty
• of children in the criminal process
• to a fair trial
• in criminal proceedings
• to compensation for wrongful conviction
• not to be tried or punished more than once for the same offence
• not to be subject to retrospective criminal laws
• to freedom from forced work
• of ethnic, religious or linguistic minorities

What are the limitations on human rights?

These rights can only be limited by restrictions contained in other ACT laws which are consistent with a free and democratic society. These limitations must be proportionate to the ends they are trying to achieve.

How are human rights protected in ACT law? Can the government be sued if it breaches human rights?

The Act focuses on the interpretation of ACT laws, requiring courts, tribunals, decision makers and others authorised to act under ACT legislation to interpret legislation to be consistent with human rights as far as possible.

As originally passed, the Act did not provide a new basis to bring a case to court or to seek compensation from the government. Rather, it was useful in cases brought under existing legal mechanisms, such as administrative law review or tort, as relevant legislation should be interpreted to be consistent with human rights, which might lead to a different result.

However, following the Amendment Act, it is possible to bring an action against a public authority for breach of human rights. The Supreme Court can grant remedies for a breach of human rights as it sees fit, such as ordering a decision to be changed or an apology to be made, however it cannot order compensation. These provisions of the Amendment Act commence on 1 January 2009.

What happens if laws are incompatible with human rights?

The Act gives the Supreme Court power to issue a declaration of incompatibility where it finds that an ACT law cannot be interpreted to be consistent with human rights. However this does not invalidate the law. The declaration is designed to draw attention to a breach of human rights and to require the government to address this. The Attorney-General must present a copy of the declaration to the Legislative Assembly within six sitting days of receiving it, and table a written response within the next six months.

Do new laws have to comply with human rights?

The Legislative Assembly is not prevented from passing a law which is incompatible with human rights, but the Attorney General is required to provide a compatibility statement with each bill the government introduces, informing the Parliament whether, in his or her opinion, the bill is compatible with human rights.

The role of the Human Rights Commissioner

The functions of the Human Rights Commissioner under the Act are to:

• review the effect of ACT laws, including the common law, on human rights, and to report to the Attorney-General on the results of the review.
• provide education about human rights and the Act
• advise the Attorney-General on anything relevant to the operation of the Act.

The Commissioner has the power to intervene in appropriate human rights cases with the leave of the Court or Tribunal. The Supreme Court must notify the Commissioner if it is considering making a declaration of incompatibility or if it is hearing a case concerning the application of the HRA.

For more information visit www.hrc.act.gov.au

When will the Act be reviewed?

The government was required to present a report of the review of the first year of the Act to the Legislative Assembly by 1 July 2006. A further review is required by 1 July 2009.