The first 18 months’ operation of the ACT Human Rights Act 2004
The Human Rights Act 2004 (‘HR Act’) has been in operation now for 18 months – it was enacted by the ACT Legislative Assembly in March 2004 and commenced operation on 1 July 2004. It is the first Bill of Rights enacted in Australia and followed an extensive community consultation process.
The HR Act is an ordinary piece of legislation, rather than being Constitutionally entrenched, as is the case in the USA and Canada. It uses a statutory interpretation model similar to the Bill of Rights Act 1990 in New Zealand, rather than providing a direct right of action in the courts, as is the case under the Human Rights Act 1998 in the United Kingdom. This model engages all three arms of the Westminster system in a dialogue about what is the content of and proportionate limits on human rights. Section 30 of the HR Act requires that interpretations of ACT laws that are consistent with the civil and political rights listed in the Act are ‘as far as possible to be preferred’. It requires that the interpretation of an ACT law by any person or body, such as a court or a public servant, be consistent with human rights.
Victoria will be the next jurisdiction to have a statutory model, with a Charter to be enacted in 2006 implementing the central recommendations of the Human Rights Community Consultation Committee chaired by Professor George Williams. Both the ACT HR Act and proposed Victorian legislation are required to be reviewed to specifically consider whether rights in the International Covenant on Economic, Social and Cultural Rights should also be included.
The ACT Experience
The biggest impact of the HR Act has been in influencing the formulation of government policy and new legislation. Government agencies need to comprehensively integrate human rights into the design, implementation and evaluation of programs, as well as into in the development, interpretation and implementation of policy, legislation and service. Under section 37 of the Act all government Bills are required to have a compatibility statement prepared by the Attorney-General, with research generally being undertaken by the Department of Justice and Community Safety. The Standing Committee on Legal Affairs also regularly comments on human rights impacts of all Bills, including Private Members’ Bills.
Critics predicted that the HR Act would: be a litigious feast for lawyers; undemocratic, giving judges too much power to overturn laws; or have no impact at all. None of these have occurred – there has been no avalanche of cases pursued by lawyers, wayward judgements or an increase in failed criminal cases. The HR Act was initially only cited in a small number of cases in the Supreme Court, and an Administrative Appeals Tribunal case.
However, new section 51A of the Domestic Violence and Protection Order Act 2001 was challenged in the Supreme Court on the grounds that it is incompatible with the rights of fair trial and liberty. The ACT Human Rights Office applied to intervene and argued that this provision designed to streamline cases had gone too far, through bypassing the right to a hearing before an interim order was made final for 12 months.
In the case of SI v IS (2 December 2005) the Chief Justice ‘read in’ (or implied) a right to a hearing through a human rights consistent interpretation of the Act. Though it was possible, no Declaration of Incompatibility was issued to alert the Legislative Assembly that the law is not human rights compliant and trigger debate about whether law reform is necessary. The Chief Justice noted that the Attorney-General had issued a Statement of Compatibility and must have intended the new provision to be human rights complaint. Under the proposed Victorian model a law expressly overriding human rights will prevent a Declaration of Incompatibility being issued by a court for five years.
The Role of the Human Rights Commissioner
A very important goal in implementing the HR Act is creating a human rights culture, rather than merely focussing on litigation. Under section 41 of the HR Act the Commissioner has three central roles: to report to the Attorney-General on reviews of the effect of ACT laws (in practice called ‘audits’); provide community education; and advise the Attorney-General on anything relevant to the operation of the HR Act.
The largest project of 2005 was conducting a human rights audit of the ACT juvenile detention facility – it found that Quamby had operated without a proper legislative basis since self-government in 1989. The audit reported on issues relevant to humane treatment (including strip searches, surveillance, periods of lockdown, seclusion and conditions of detention), and other issues such as communication with the outside world, complaints systems, discipline resulting in loss of remission and privileges, mixing of young people who are of different ages, gender and status (convicted and remandees). The audit made fifty-two recommendations for change, twenty-five of which have been accepted in full by the government and the remaining twenty-seven in principle.
Community education has been an important priority, with training available both for general members of the public and for people with legal backgrounds. The Office holds an Annual Human Rights Senior Primary School Student’s Award for students and schools and publishes a quarterly electronic newsletter, Humanity, which describes our initiatives and summarises recent case-law. The Office also holds biannual Human Rights Community Forums, which have provided informed submissions to the Attorney-General’s review of the HR Act in the required areas (economic, social and cultural rights and environmental rights), but also in other areas such as indigenous issues and whether there is a need to strengthen the Act. The Office has also co-hosted forums to consider specific issues in depth from a human rights perspective, including anti-terrorism laws, mental health and victims’ rights.
The Commissioner has given advices by request to the Attorney-General on several matters, including detainees’ right to freedom of expression, delays in trials of detainees, allowing appropriate changes in names of prisoners and their family. The Office has also made comments on Cabinet Submissions and important Bills, such as ones concerning the new ACT prison, emergency ECT and anti-terrorism laws (see copies on website) as well as comprehensive submissions to State (eg Victoria) and Federal bodies.
Anti-terrorism laws
Our response to the threat of terrorism defines us as a community. UN Security Resolution 1456 of 2003 expressly states that countries still need to fulfil their human rights obligations when addressing terrorism. The Law Council of Australia has unsuccessfully lobbied to protect our central democratic values under the Anti-Terrorism Act (No. 2) 2005 which was rushed through Federal Parliament. The ACT draft anti-terrorism legislation has been publicly released as an exposure draft and the Human Rights Office will make a detailed submission in early 2006.
However, several provisions already avoid many of the problems with the executive’s excessive powers, including giving police or other issuing authorities broad powers, overly restrictive limits on full judicial review, and legal representation of detainees. The ACT Bill requires a fair court hearing for preventive detention orders on limited grounds, including when it is reasonable and necessary, as well as the least restrictive means of preventing a terrorist act. It does not apply to children under the age of 18 years. It enables full legal representation of detainees. The Bill does not contain offences for people, including family members, who disclose that someone is su bject to an order – this is also the case in the UK. Authorising orders for special police powers, such as search and seizure, are to be made by courts. As recommended by the Federal Senate Committee, the ACT Bill has a sunset clause of 5 rather than 10 years.
Recent ACT Law Reform
The ACT has recently announced several law reform initiatives that deepen compliance with human rights, such as recognising civil unions of same sex couples similar to laws enacted in the UK and a review of the Mental Health (Treatment and Care) Act 1994 against human rights standards. The ACT government’s commitment on civil unions does not go as far as Spain and Canada which enacted national laws in 2005 recognising civil marriage, but not requiring it to be a religious sacrament. However, the ACT proposal goes beyond a simple registration scheme, eg Tasmania, and reinforces early legislation, including the Domestic Relationships Act 1994.
Conclusion
With 18 months’ operation of the HR Act in the ACT our experience is that it takes time and effort to build a human rights culture, but that positive improvements are already noticeable. There has been increased in awareness of human rights principles, for example more informed debate and scrutiny of proposals, such as anti-terrorism legislation. Law is very necessary, but alone is not a sufficient step towards compliance with human rights standards. Protection of human rights should be above partisan politics, but of course there will be strong and varying arguments about what mechanisms should be used to implement and monitor them. Bills of rights have substantive and symbolic impact – they are a source of focus for social change, and a measure against which our local laws and actions can be compared to international standards in order to prevent backsliding in human rights.
Report of the ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act (May 2003)
Ken Patterson, Investigation into Risk of Harm to Clients of Mental Health Services (2002) and Rod Mann and Kerrie LaRoche, The Review of the Design and Operation of the Psychiatry Services Unit (2003)
Director of Public Prosecutions’ statement at the Legislative Assembly Legal Affairs Committee hearing on Annual Reports on 11 February 2005