Human Rights Act
The ACT has a proud history in the protection and promotion of human rights.
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:
Human Rights Commission Act 2005 which establishes an independent office of the Human Rights Commission
Discrimination Act 1991 which gives effect to the right to equality and non-discrimination of people with protected attributes in a range of public areas of life including work, education and access to services.
UPDATE: Discrimination protection in ACT schools and tertiary institutions
Students and staff in schools and tertiary institutions are protected from discrimination on the basis of sexuality, gender identity, race, pregnancy, intersex status and other protected attributes.
In response to community concerns, last year the ACT Government introduced the Discrimination Amendment Bill 2018 to amend the Discrimination Act 1991 to strengthen existing discrimination protections in the ACT. These amendments were passed by the Legislative Assembly and the new protections apply from 29 April 2019 onwards.
Please see the attached fact sheets for non-government schools and other religious educational institutions.
These fact sheets do not constitute legal advice.
Please see the Human Rights Commission Website for more information.