Page 4029 - Week 13 - Thursday, 6 December 2007
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tribunals and officials on how to assess compatibility. And it will extend the notice requirements for proceedings in a court or tribunal which involve the interpretation or application of the Human Rights Act.
The amendments proposed in this bill will respond to the recommendations of the 12-month review of the act which I tabled in the Assembly last year. They will commence on 1 January 2009, prior to the five-year review which is currently set for tabling in the Assembly by July 2009.
I turn now to some of the specific provisions of the bill. The first is a direct right of action. The bill will create a direct right of action flowing from a duty to comply with human rights on public authorities. The proposal for a direct right of action was the subject of extensive public consultation by the Bill of Rights Consultative Committee in 2003 and by more limited public consultation in the context of the 12-month review in 2005. Deliberative polling by the consultative committee indicated that around 60 per cent of Canberrans supported the idea of a bill of rights and that around 70 per cent considered that the rights and freedoms it protected should be enforceable in a court or tribunal, as opposed to a non-binding declaration.
Of the 145 submissions received on its 2003 report, around 60 per cent were in favour of a bill of rights which included a clear and express right of action. This support continued to be strong in 2005. The submissions to the 12-month review indicated overwhelming support for a direct right of action.
I turn now to the duty on public authorities. The bill will impose a duty on public authorities. All public authorities will be required to act in a way that is compatible with human rights unless the incompatible conduct is required by law. The bill sets out the circumstances in which the duty to act consistently with human rights does not apply.
It provides that the public authority will not have acted unlawfully if, as the result of one or more provisions of a territory law, the public authority could not have acted differently or made a different decision. In the case of one or more provisions of a territory law which cannot be read or given effect in a way which is compatible with human rights, the public authority was acting so as to give effect to or enforce those provisions, or as the result of a commonwealth law, the public authority could not have acted differently or made a different decision.
The duty is adapted from the United Kingdom’s Human Rights Act 1998. It will enable victims of unlawful acts by public authorities to rely on human rights in legal proceedings in courts and tribunals or to institute an independent cause of action in the Supreme Court.
I turn to the definition of public authority. The duty to act in accordance with human rights will extend to all public authorities—in other words, all entities that perform a public function. This model was recommended by the consultative committee and has been adopted by most human rights jurisdictions, including the UK, New Zealand and Victoria.
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