Laws and policies which limit human rights
Human rights are essential in a democratic and inclusive society that recognises the dignity of all people.
However, human rights protections are rarely absolute. Laws and policies can restrict human rights in a way that is reasonable and justifiable — for example, rights might be restricted to protect life, health and safety.
Below are six important principles to guide governments, when they are considering whether any human rights restrictions contained in laws or policies meet obligations under the Human Rights Act:
- Is the restriction necessary?
- Is the restriction proportionate?
- Does the restriction comply with existing laws, including discrimination laws?
- Is the restriction transparent?
- Is the restriction subject to scrutiny?
- Does the restriction protect the human worth and dignity of communities most at risk?
Necessary
Human rights can only be restricted to achieve an important and legitimate purpose. Decisions to restrict people’s rights should be based on evidence that the restriction is needed to achieve that purpose. If circumstances change, and the restriction is no longer needed, it will no longer be justifiable.
Proportionate
Measures that restrict human rights should be the least restrictive possible. The way in which these measures are enforced — such as fines and move on powers — must be proportionate. There must also be avenues for review or appeal.
Before implementing restrictions, government agencies should consider alternative measures to limit the impact of those restrictions.
Laws and policies that restrict rights should be regularly reviewed to ensure they remain justified. Such laws and policies should be removed once the need for them has passed.
Lawful and non-discriminatory
Restrictions on rights must also be in accordance with the law. In addition, any restrictions on rights must not be discriminatory, a right protected under both the Human Rights Act and the Discrimination Act.
Transparent
The government should provide accessible, timely, clear and comprehensive information about any measures that restrict human rights. It should do this in a way that the public, including people with disability and from culturally and linguistically diverse backgrounds, can readily understand.
The reasons and justification for any restriction should be recorded and publicly available.
Scrutinised
Supervision and scrutiny of government actions, including laws and the exercise of new powers, is key to upholding democracy and the rule of law.
The Human Rights Act requires a statement of human rights compatibility to be prepared with any bill the government introduces to the ACT Legislative Assembly. Subordinate legislation should also be accompanied by a human rights certificate regarding its human rights compatibility.
Normal parliamentary scrutiny should only be bypassed in urgent and exceptional of circumstances. Consultation, where possible, should still occur with stakeholders.
The public should be able to access information about their rights, including how to report problems with restrictions, and how to appeal or request a review of decisions. The right to freedom of expression and peaceful assembly should be promoted and protected.
Protect human worth and dignity
Restrictions on human rights must consider the specific needs of different communities and the consequences of general restrictions for them. Communities that are most likely to be impacted by restrictions on human rights include Aboriginal people and Torres Strait Islander people, people with disability, children, older people, people at risk of domestic violence, culturally and linguistically diverse communities and people in detention.
Where possible, safeguards should be built into laws, policies, and practices to prevent abuse of any new powers and to protect people most at risk. These can include public reporting, internal and external review processes, significant powers only authorised via court orders, independent oversight of closed environments (eg prisons and police cells) and protection against racial vilification.
Information on this page was adapted from the Victorian Equal Opportunity and Human Rights Commission.