Page 381 - Week 02 - Tuesday, 4 March 2008
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definition of public authority. In essence, it includes all entities that are a part of or associated with government, whether literally or not. This includes individuals such as ministers, police officers and public employees. It also extends to any entity whether under contract or otherwise whose functions are either wholly or partly of a public nature and exercised on behalf of the territory or a public authority.
“Entity” includes individuals acting under delegations, subject to delegation or otherwise. It excludes the Legislative Assembly and the courts except for their administrative roles. The clause also outlines the matters to be considered in deciding the meaning of “function and public nature” and includes a range of specified services, such as utilities, emergency services, public health services and public education, transport and housing as well as detention places and correctional centres.
The clause provides that a public authority must act and make decisions in a way that is compatible with a human right. A public authority is not required to act consistently if its own act expressly requires it to act in a particular way or the law cannot be interpreted in a way that is consistent with human rights. Individuals can start proceedings in the Supreme Court against a public authority if they claim the authority is acting in contravention of the Human Rights Act or if they allege they would be a victim of the contravention. In such cases, the Supreme Court will grant relief but not damages.
The provision does not prevent individuals from pursuing other legal avenues should they wish to seek damages. The clause also provides that non-public authority entities can seek from the minister a declaration that they are public authorities for the purposes of the Human Rights Act. The minister must issue the declaration and cannot withdraw it until the entity asks for it to be withdrawn.
This amendment clause has a number of problems associated with it. Firstly, in drafting clause 7 of the bill, the ACT is seeking to bring the Human Rights Act into line with Victoria, whose Charter of Human Rights and Responsibilities Act 2006 came into effect on 1 January 2008. It is considered that Victoria leapfrogged the ACT with its legislation. It seems that this is potentially more about keeping up with the Joneses than about examining the impact of these amendments in the ACT. What is good for the goose may not necessarily be good for the gander. To introduce amending legislation without proper consideration for its impact on local circumstances shows a lack of analysis on the part of the government.
Secondly, the definition of “public authority” is so broad as to be capable of extending to private sector individuals and businesses contracted to the government. The definition provides that a contractor who is wholly or only partly engaged in the delivery of services of a public nature on behalf of the territory should be regarded as a public authority for the purpose of the Human Rights Act. This imposes an additional layer of risk on private sector contractors for which I doubt the other will provide recompense.
Thirdly, this amendment may well mean that all government agencies within the definition of public authorities will most likely have to review their legislation for compliance. This could potentially involve a very great number of pieces of
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