Operation of a Human Rights Act
The Brennan Committee’s proposed Human Rights Act (HRA) would have six main elements. These elements are set out below.
- The HRA would be an ordinary Act of Parliament, not constitutionally entrenched. As a result, Parliament would be able to pass, and crucially to amend, the HRA in the usual way without carrying out a referendum. This would allow the HRA to be refined as needed, especially if the Act had unintended consequences.
- The HRA would contain a list of judicially-enforceable human rights, consisting mainly of civil and political rights, such as freedom of expression, the right not to be tortured and so on. Economic, social and cultural (ESC) rights—such as the rights to health, housing and education—would be listed but would not be enforceable under the HRA. The principal reason for excluding ESC rights from judicial enforcement is to retain Parliament’s discretion in relation to these rights.
- The HRA would require Commonwealth “public authorities” (especially, Ministers, public servants, departments and agencies) to comply with the human rights set out in the HRA, when they make decisions and in their other conduct. That is, only public authorities would be required to comply with the Act. Ordinarily, no private organisation (such as a church or other religious organisation) would be required to comply with the Act. However, where an organisation is acting as a public authority—for example, by providing a public service on behalf of the government—then it would be required to comply with the HRA. Having said this, the Brennan Report also mooted the possibility that some service providers, such as religious organisations, might be exempt from even this limited requirement.
- The HRA would require other laws to be interpreted consistently with the HRA-protected rights, subject to logic and parliamentary intent. This means that where a law could be interpreted in two ways—either so as to violate a person’s human rights, or in a way that protects those rights—a court will prefer the rights-compliant interpretation. However, the HRA would recognise that sometimes Parliament will legitimately need to impinge on certain rights for a competing public interest. So, where Parliament makes clear that a law is intended to override a right or rights, that intention will be respected by the courts.
- In such a situation or where a court finds that a law is simply incompatible with a HRA-protected right or rights, the impugned law would remain valid. The High Court would be able to issue a declaration notifying the government that the law is incompatible with the HRA. However, it would be Parliament’s absolute discretion whether or not to amend the impugned law.
- The HRA would establish a new joint committee of Parliament to consider the impact of draft legislation and policy on human rights. The rationale here is to ensure that new laws are drafted wherever possible to respect fundamental human rights.
Edward Santow, Director, Charter of Human Rights Project, Gilbert + Tobin
Centre of Public Law.
Also see Case Studies of Human Rights in action http://www.isaiahone.org/human-rights-case-studies/