04 June 2008
Under recently passed amendments to the ACT Human Rights Act 2004 all ACT public authorities and private entities providing services on their behalf will be required to act consistently with human rights in the Act as of 1 January 2009. What will these mean for everyday administration in the Territory? In this article, we summarise the amendments and consider the implication for the ACT public sector and the private sector bodies which provide services to it.
Currently, the Act requires the Legislative Assembly to scrutinise proposed bills in light of human rights considerations and the judiciary to interpret Territory laws in a way that is compatible with human rights. Now, with the passage of the amendments, human rights assessment is also set to become an everyday consideration for the executive, its administrative bodies and their contractors.
Some examples of the human rights that these bodies will need to consider include the right to privacy and reputation, right to a fair trial, freedom of expression, freedom from forced work and the right to humane treatment when deprived of liberty.
The new obligation to act consistently with human rights contained in the Act will apply to "public authorities", which includes all entities and individuals that are a part of, or associated with, the ACT government. Not only does the definition capture government agencies, Ministers, public servants and police officers but also private entities that provide services of a public nature. For example, the obligation will apply to private hospitals in providing public health services, utility companies in supplying electricity, gas and water and other private entities that provide public transport and services to public housing and correction centres. As public services are increasingly outsourced to the private sector, the obligation to act in accordance with human rights is likely to apply to more and more entities over time.
Interestingly, entities which do not fit within the definition of a public authority will be able to "opt-in" to the new obligation. Whilst there is doubt as to whether any such entities will do this, it is possible for the ACT government to make human rights central to doing business with the government by making opting-in a condition of contracting with its public authorities.
Where a contravention of the obligation is alleged, a new direct cause of action has been established, allowing individuals to seek relief from the ACT Supreme Court. Whilst compensation cannot be awarded for a breach of a human right, the Court will have the power to grant the relief it considers appropriate, including:
Areas where the non-compliance with human rights is likely to be litigated include criminal justice, public housing, corrective services (such as the new ACT prison), policing and child services. These have already featured prominently in cases where the courts and tribunals have considered rights under the current Human Rights Act.
Given the potential for human rights litigation under the amendments, it is vital for all members of the ACT public sector to be aware of the powers and policies within their mandate which could possibly be exercised or applied in contravention of the human rights in the Act. Accordingly, the time between now and 1 January 2009 will be used to develop and implement guidelines and procedures to assist decision makers in considering human rights when making decisions and carrying out their public functions.
It will also be necessary for private sector bodies to consider how the services they provide to the ACT government could impact on the rights of individuals and for government agencies to ensure that their private sector contractors are prepared. Failure to comply with human rights in the Act will not only expose those private entities to unlawful conduct but could also be potentially embarrassing for the agency.
How the new obligation and cause of action will be approached by the public sector and individuals in the ACT will only be revealed when the amendments come into effect in 2009. For the time being, all eyes will be on Victoria, where similar provisions came into effect at the start of this year. The experiences of Victoria, with its larger population and public service, will undoubtedly shed some light on the kinds of issues that are likely to arise.
