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ACT human rights act celebrates 10 years and no disaster

Date

Helen Watchirs and Sean Costello

Illustration: Andrew Dyson

Illustration: Andrew Dyson

July 1 will mark 10 years since the ACT became the first jurisdiction in the country to legislate basic human rights. Many predictions made a decade ago have not occurred. Commonwealth Park is not full of lawyers picnicking on human rights litigation, and unelected judges have not rewritten ACT law.

This anniversary occurs while the nation debates the extent of rights protection in Australia. These include proposed constitutional recognition for first peoples; the federal government’s racial vilification changes, and the Australian Law Reform Commission’s consideration of traditional freedoms. It is not unusual for our community to discuss such issues. These rights are inherent to the debates we have about how the ACT government should protect and serve its citizens.

Yet only the ACT and Victoria have enshrined internationally recognised human rights into domestic law. Residents of other jurisdictions must rely on a patchwork of rights drawn from various sources. In contrast, the ACT and Victorian legislation specifies protected rights, and when governments may reasonably limit those rights.

These basic human rights are not inconsistent with many often quoted "Australian values". Concepts such as a "fair go", multiculturalism and freedom of speech are consistent with international human rights. These include the right to equality, freedom of expression, and the right to participate in public life. 

The International Covenant on Civil and Political Rights is source of these rights. The United Nations adopted this instrument in 1966, although it did not deliver the comprehensive rights protection originally intended. The Cold War meant Western democracies were most interested in protecting "individual" rights. Many of Australia’s peers in the Western world have since adopted this instrument into their domestic law, including Britain, New Zealand, Canada, South Africa and many countries in Europe.

Also in 1966, the United Nations adopted the corresponding International Covenant on Economic, Social and Cultural Rights. These "group" rights are more concerned with those services that a government must provide for its citizens, such as the rights to health, education, housing and work. Western democracies have been less enthusiastic about adopting these into law. However, in 2013 the ACT followed the lead of Britain and South Africa and added the right to education to our legislation.

These instruments require governments to protect, promote and fulfil the human rights of their citizens. In the ACT legislation this obligation requires ACT public authorities to act and make decisions consistently with human rights.

Nonetheless, the ACT Human Rights Act has not been without controversy. At the time it was debated, there were disingenuous claims that it would lead to "unelected judges" making undemocratic new laws. In fact, the act prevents these outcomes. Judges cannot overrule or amend laws that are inconsistent with human rights. This is the "dialogue model" of human rights, obliging each part of government to discuss human rights issues publicly. At the conclusion of this discussion, the ACT Legislative Assembly makes the final decision on whether to amend the law, or leave it unchanged.

For example, the ACT Supreme Court handed down the first and only "Declaration of Incompatibility" under the Human Rights Act in 2010. This decision found presumptions against bail for certain offences in the ACT Bail Act incompatible with the right to liberty. Despite the declaration, the law remains unchanged. Individuals charged with certain offences including murder (and attempted murder) and some drug offences must continue to prove special circumstances before the court undertakes an ordinary assessment of bail. 

For these and other reasons, the act has also been criticised for not delivering significant change to the law or government policies and practices.

Ten years on, the ACT Human Rights Commission and the Australian National University want to hear more about the community’s views. The "Continuing the Dialogue" conference on Tuesday will include the champions, critics and architects of the ACT model. Members of the community can put their views to a range of speakers including former Chief Minister Jon Stanhope and Professor Hilary Charlesworth, who chaired the 2003 Bill of Rights consultative committee. Details on how to attend this free conference are available at hrc.act.gov.au.

Another topic of discussion at this forum will be the cultural change the act has brought to the ACT government. The act’s operational requirements have driven this gradual change. First, the Attorney-General must table his or her assessment of whether new laws introduced into the ACT Legislative Assembly are compatible with human rights. Further, the Justice and Community Safety Committee of the Assembly scrutinises new bills for compatibility. The committee publicly reports on issues of concerns and asks ministers to address such issues. Human rights issues raised by the committee, the Human Rights Commission, non-government organisations, the media and others have resulted in tangible changes to ACT law, sometimes at the last moments of debate.

These experiences have led ministers and their directorates to embed human rights considerations early in the policy process. Explanatory material now justifies in detail if, and why, new laws limit rights. For example, the Justice Committee recently commended the government on its human rights discussion accompanying a bill amending mental health laws. This is the very change that the dialogue model of human rights sought to implement.

However, like any law, the Human Rights Act is not perfect. Another topic for discussion at Tuesday's conference is the barriers to individuals bringing human rights actions against the government. For other types of civil complaints against public authorities, the law provides low-cost compliance actions through bodies like the ACT Human Rights Commission or the ACT Civil and Administrative Tribunal. For a breach of human rights, however, a person must instead commence action in the Supreme Court. Individuals are further discouraged from beginning such action by a restriction on courts awarding damages for human rights breaches. While parties can make human rights arguments during other proceedings in courts and tribunals, it is unclear what remedy such arguments will provide a successful litigant.  

Nonetheless, the act continues to provide a lens through which to assess law reform proposals, government practices and policy changes. Many local debates have benefited from this human rights assessment, including proposed new laws for serious organised crime, random drug testing of drivers, and changes to the treatment of people with disabilities. There have been four important Human Rights Audits of adults and young people's conditions of detention during this decade, which have led to better practices and outcomes.

Ten years of the ACT Human Rights Act has demonstrated the value of such assessment. The big national issues, such as treatment of Aboriginal people and asylum seekers, need to be measured through the same sharp lens.

Helen Watchirs is  ACT Human Rights and Discrimination Commissioner and Sean Costello, is Principal Legal Adviser, ACT Human Rights Commission.

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