Page 4030 - Week 13 - Thursday, 6 December 2007
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The question of what constitutes a public authority draws on the definition used in the United Kingdom’s Human Rights Act and the Victorian charter of rights. This reflects the large body of law and commentary that surrounds the UK act and the extensive resources that have gone into the formulation of the UK and Victorian approach.
What is not a public authority? To ensure the legislature retains the broadest possible power to make laws for the peace, order and good government of the territory, the Legislative Assembly itself is expressly excluded from the definition of public authority. An express exclusion also applies to the courts, except where they are performing administrative functions, in line with the Victorian approach.
I turn to the issue of remedies. In line with the recommendation of the 12-month review and the Victorian charter, damages will not be available for a breach of the Human Rights Act. Rather, a finding of a breach could, for example, be a basis for setting aside an administrative decision or for a declaration that the public authority’s actions breached were not in compliance with human rights.
I turn to the issue of the opt-in option. In the spirit of promoting a human rights culture in the ACT, community organisations and corporations that do not perform a public function will be provided the opportunity to voluntarily opt in to the duty to act consistently with human rights, similar to the duty on public authorities. Such a provision will be unique among human rights jurisdictions and will promote a meaningful dialogue within the community about human rights, in line with the overall aims of the Human Rights Act and the growing interest among public and private bodies for triple-bottom-line reporting or reporting against the three major dimensions of sustainability: economic, social and environmental.
The option to opt in recognises that the private sector can, and does, make important contributions to the wellbeing of society. The private sector is already required to act lawfully in regard to occupational health and safety, equal opportunity and similar obligations. Encouraging broader, voluntary compliance with human rights standards is a natural progression in the process of ensuring the best possible outcomes for Canberrans.
As I have said, the duty on public authorities and the direct right of action will commence on 1 January 2009. The reason for the delay is to allow adequate time for all agencies to conduct audits and training in relation to the duty on public authorities and the direct right of action.
The bill will amend the reasonable limits clause to provide specific guidance on the range of relevant factors that must be taken into account when assessing whether a limitation on a human right is reasonable and justified. This is intended to reduce uncertainty over how to apply the reasonable limits test. It will provide greater clarity for decision makers when considering the proportionality of limitations. The concept of proportionality as the means of determining how and when human rights may be limited is a well-accepted principle in international law and comparable human rights jurisdictions.
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