Achieving the Rights Outcome6
Human Rights in the Courts
If your advocacy fails, or you are wishing to discuss with a Public Authority what the consequences of a human rights breach may be, considering legal action is an option. An individual may bring a human rights action against an ACT Public Authority in the ACT Supreme Court.
Only an individual who alleges they are or would be the ‘victim’ of a breach by a public authority of its obligation can bring proceedings. The term ‘victim’ is not defined in the HRA, but is intended to be interpreted consistently with its meaning in international human rights law, that is, of the person experiencing a breach of human rights. Only individuals can be a ‘victim’, as legal entities such as corporations do not have rights under the HRA. Relatives of a victim may also have standing in certain circumstances, for example, where a complaint is made about the victim’s death, or where the victim is a child. See, for example, Explanatory Statement, Human Rights Amendment Bill 2007 (ACT) 6, where reference is made to a number of relevant communications of the United Nations Human Rights Committee.
Section 40C(4) of the HRA provides that the Supreme Court may grant ‘the relief it considers appropriate’ except for damages, where a public authority has been found in breach of its obligations under the HRA. Remedies ordered by the Court might include an injunction to stop or prevent conduct from occurring, or a declaration that the decision was unlawful, requiring the original decision to be reconsidered in a human rights consistent manner.
Any right to damages under other legislation or the common law for the same conduct remains undisturbed. So, while there is no separate right to damages for a breach of human rights per se, human rights arguments may be raised to strengthen a pre-existing claim for damages, such as in negligence.
A proceeding against a public authority for a breach of a human right must be brought within one year of the date on which the alleged unlawful conduct took place. However, the Supreme Court can extend that period if it considers it is fair to do so in the circumstances.
Information on obtaining legal advice, including for free, is available at the end of this guide under Links to More information.