Overview
History of the Human Rights Act
The Human Rights Amendment Act 2008
The rights recognised in the Human Rights Act
Key aspects of the Human Rights Act
Evaluations and Resources

The Human Rights Act 2004 (ACT) is an ordinary Act of the Australian Capital Territory Legislative Assembly designed to protect in ACT law certain rights and freedoms.

The purpose of the Human Rights Act is, as stated in its Explanatory Statement, ‘to recognise fundamental civil and political rights’ and to ensure that, so far as is possible, all statutes and statutory instruments of the ACT ‘are interpreted in a way that respects and protects the rights’ set out in the Act. Similarly to Victoria’s Charter of Human Rights, it does this by:

• setting out the human rights that the ACT wishes to protect and promote;
• requiring all other ACT legislation to be interpreted, so far as is possible, in a way that is consistent with these rights;
• requiring the Attorney-General to prepare a written statement for each Bill a Minister introduces into the Legislative Assembly, assessing whether or not it is consistent with human rights (‘statement of compatibility’); and
• giving the ACT Supreme Court jurisdiction to declare that a statutory provision is inconsistent with a human right (‘declaration of incompatibility’).

The Human Rights Act is intended to affirm and protects human rights, but the ACT Legislative Assembly also recognised that sometimes governments must limit or override individual human rights for the good of the community. That is why s 28 of the Human Rights Act expressly recognises that human rights are subject to such reasonable limitations ‘that can be demonstrably justified in a free and democratic society’.

For more information about the Human Rights Act, click here. You can read the full text of the Human Rights Act here or here.

The ACT is a pioneer in legislated human rights protection in Australia. It was the first Australian jurisdiction to enact a Charter of Human Rights, on 2 March 2004.The Act came into force on 1 July 2004.

This historic move was made in response to recommendations made by the ACT Bill of Rights Consultative Committee, which consisted of Professor Hilary Charlesworth (Chair), Professor Larissa Behrendt, Ms Penelope Layland and Ms Elizabeth Kelly. The recommendations were made after a detailed community consultation process about how best to protect the human rights of ACT citizens. You can read about that consultation process here. The Final Report of the consultation committee indicated that a majority of ACT citizens were in favour of an ACT Charter of Human Rights.

The Chief Justice of the ACT Supreme Court welcomed the Human Rights Act in a speech to the National Press Club in Canberra on 3 March 2004.

The Human Rights Act 2004 was amended by the Human Rights Amendment Act 2008, which was passed by the Legislative Assembly on 4 March 2008.
The key changes made by the Amendment Act were to:

• s 30, in order to clarify the interaction between the Human Rights Act and the purposive approach to statutory interpretation;
• s 34, which requires the Supreme Court to notify the Attorney-General and Human Rights Commissioner when it is hearing a case involving the application of the Human Rights Act; and
• s 28, which clarifies the limits that can be placed on human rights by setting out a list of factors that must be taken into account when determining whether a limitation is proportionate.

These amendments came into force on 18 March 2008.
Additionally, the Amendment Act also created a new Part 5A, which contains:

• a direct duty on public authorities to comply with the Human Rights Act; and
• an independent cause of action and right to remedy (but not damages) if a public authority has contravened a human right.

These latter two provisions will come into force on 1 January 2009.
Read more about the Amendment Act here.

It is in keeping with Australia’s international obligations.
The majority of human rights enshrined in Part 3 of the Charter are based on the International Covenant on Civil and Political Rights, a treaty which Australia ratified in 1980.

It does not limit or restrict other rights or freedoms.
The Human Rights Act expressly sets out core human rights, but this does not mean that it excludes, limits or downgrades any rights or freedoms not included in the Act. The Act expressly states that the rights recognised by Part 3 are not exhaustive of an individual’s human rights: s 7.

Reasonable limitations can be placed on a human right
Limitations may be placed on a human right where this limitation ‘can be demonstrably justified in a free and democratic society’: s 28.
New Bills are scrutinised to determine whether they are compatible with human rights
All Bills introduced into Parliament must be tabled with a statement of compatibility, which outlines the extent of its consistency with human rights: s 28. The Scrutiny of Acts and Regulations Committee must report to Parliament on whether a Bill is incompatible with human rights: s 30.

Courts and tribunals must interpret legislation consistently with human rights
Every existing or new Territory law must be interpreted consistently with the Human Rights Act, so far as is possible whilst maintaining consistency with the purpose of the other Act: s 30. Courts and tribunals may use international human rights jurisprudence to assist in interpretation: s 31.

The ACT Supreme Court cannot ‘strike down’ a law
If the ACT Supreme Court finds that a statutory provision is not consistent with the rights contained in the Human Rights Act, it cannot ‘strike down’ or invalidate the provision in question, nor can the Court rule that any government acts made under the provision are unlawful. The Supreme Court may only make a declaration of incompatibility, and notify the Attorney-General of this, who in turn must notify the Legislative Assembly. It will then be up to the elected members of the Legislative Assembly to decide what action (if any) to take.

New legislation is subjected to greater scrutiny
The human rights impact of new legislation must be considered, and each government bill must be presented with a written statement by the Attorney-General about whether this proposed legislation is consistent with the Human Rights Act.

Existing legislation is subjected to greater scrutiny
The Human Rights Act established a Human Rights Commissioner to review existing legislation and conduct education programs relating to human rights.

For an ongoing analysis of the impact of the Human Rights Act, including case analysis, conference papers and a vast compendium of media reports and opinions, visit the ACT Human Rights Act Research Project, which was established to monitor the Act over its first five years.