Page 4028 - Week 13 - Thursday, 6 December 2007
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came into force on 1 July 2004. It was based largely on a model bill developed by the ACT Bill of Rights Consultative Committee in its 2003 report Towards an ACT bill of rights act. The model bill, based on the bills of rights acts in New Zealand and in the United Kingdom, established a dialogue model in which human rights are taken into account when developing and interpreting ACT law, without displacing traditional constitutional arrangements.
The model bill established four avenues to promote this dialogue:
(a) a reasonable limits provision, in which the legislature has the capacity to place justifiable and proportionate limits on rights and freedoms;
(b) a declaration of incompatibility, in which the judiciary has the power to issue declarations over limits that are unjustifiable or disproportionate;
(c) an interpretive provision, in which all arms of government must adopt, where possible, a human rights consistent interpretation of laws; and finally
(d) a direct right of action, in which public authorities have a duty to comply with human rights, supported by remedies where that duty is breached.
The Human Rights Act followed the model bill provisions, but there were some significant departures. The bill that was passed in 2004 opted for a cautious interpretive provision. It was silent on the duty of public authorities to comply with human rights and it was silent on a direct right of action for failures to comply with such a duty. Further, it was silent on the appropriate remedies to address such breaches.
The decision not to adopt a direct right of action was taken on the basis that agencies required time to adapt policies and practices. There was a desire to protect the territory from the risk of substantial claims in the early days. The approach was cautious but it was prudent, given the novelty of the law. The act’s compromise was to establish a strong legislated framework through the operation of the interpretive provision, through the duty on the courts, tribunals and decision makers to interpret laws in accordance with human rights.
From the beginning, it was hoped that the interpretive provision would have a direct effect on the conduct of government through its effect on legislation. They would be required to consider human rights in their decision making. This would provide a level of immediate protection while familiarity with human rights grew in the fabric of the courts, the legislature and the executive. Almost four years on, the government believes the time has now come to place this interim model on a more permanent footing.
Today I present a bill that will clarify the operation of the interpretive provision, to better promote a human rights consistent interpretation of our statute book. The bill will create a direct right of action, flowing from a duty to comply with human rights on public authorities, to improve accessibility to remedies for breach. It will also clarify the operation of the reasonable limits provision to provide guidance to courts,
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